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8TH ED.

GEORGIA DOMESTIC VIOLENCE
BENCHBOOK
JOAN PRITTIE & NANCY HUNTER
INSTITUTE OF CONTINUING JUDICIAL EDUCATION

TABLE OF CONTENTS
ACKNOWLEDGEMENTS .................................................... viii
PREFACE ................................................................................ xii
INTRODUCTION................................................................... xiii
1

CHAPTER 1 – CIVIL PROTECTIVE ORDERS ................................... 1:1

1.1

Overview .................................................................................................. 1:1

1.2

Family Violence Protective Orders (O.C.G.A. § 19-13-1 et
seq.) .......................................................................................................... 1:2

1.3

Stalking Protective Orders (O.C.G.A. § 16-5-94) .................................. 1:9

1.4

Employer Protective Orders (O.C.G.A. § 34-1-7) ................................ 1:12

1.5

Constitutional Considerations ................................................................ 1:14

1.6

Divorce Action Restraining Orders ....................................................... 1:15

2

CHAPTER 2 – JURISDICTION AND PROCEDURE ........................... 2:1

2.1

Jurisdiction & Venue ............................................................................... 2:1

2.2

Procedure Generally................................................................................. 2:2

2.3

Petitions.................................................................................................... 2:3

2.4

Ex Parte Orders ........................................................................................ 2:4

IN THE SUPERIOR COURT OF__________
COUNTY ................................................................................ 2:7
STATE OF GEORGIA ........................................................... 2:7
IN THE SUPERIOR COURT OF

COUNTY .................... 2:9

STATE OF GEORGIA ........................................................... 2:9
2.5

Pre-Hearing Process ............................................................................... 2:11

2.6

Hearings ................................................................................................. 2:14

2.7

Employer Protective Order Process ....................................................... 2:16

3

CHAPTER 3 – REMEDIES, SETTLEMENTS AND ORDERS ............ 3:1

3.1

Overview .................................................................................................. 3:1

3.2

Remedies .................................................................................................. 3:1

3.3

Settlements And Waiver Of Remedies .................................................. 3:27
i

A.

3.4

Mediation ............................................................................................... 3:30

3.5

Orders ..................................................................................................... 3:31

4

CHAPTER 4 – CRIMINAL LAW .......................................................... 4:1

4.1

Family Violence Act ................................................................................ 4:1

4.2

Domestic Violence Crimes ...................................................................... 4:2

4.3

Domestic Violence Sentences ................................................................ 4:14

4.4

Domestic Violence Arrests .................................................................... 4:19

4.5

Domestic Violence Bonds...................................................................... 4:22

5

CHAPTER 5 – EVIDENCE .................................................................... 5:1

5.1

Sufficiency of Evidence ........................................................................... 5:1

5.2

Hearsay and Confrontation Issues ........................................................... 5:4

5.3

Similar Transactions / Prior Difficulties ................................................ 5:20

5.4

Defenses and Related Issues .................................................................. 5:25

5.5

Privileges................................................................................................ 5:31

5.6

Experts ................................................................................................... 5:37

5.7

Miscellaneous Issues .............................................................................. 5:40

APPENDIX A - DYNAMICS OF DOMESTIC VIOLENCE ....................... A:1
Table Of Contents ............................................................................................... A:1
A.

The Blind Men And The Elephant… ...................................................... A:2

B.

What Is Domestic Violence? .................................................................. A:2

C.

Who Perpetrates Domestic Violence? .................................................... A:3

D.

Are There Different Kinds Of Perpetrators? ........................................... A:4

E.

What Causes Domestic Violence? .......................................................... A:4

F.

Are There Different Kinds Of Domestic Violence? ............................... A:5

G.

What’s The Difference Between Episodic Or Situational
Couple Violence And Intimate Terrorism?............................................. A:6

H.

In An IT Or Battering Relationship, What Are The Different
Forms Or Tactics Of Abuse? .................................................................. A:6

I.

Most Other Forms Of Abuse Aren’t Criminal Acts. As A
Judge, Why Should I Be Concerned? ................................................... A:10

J.

So How Can I Discern Whether Violence Is Occurring Within
A Context Of Control? .......................................................................... A:10

K.

What About When Victims Take The Perpetrator’s Side, Ask
The Court To Dismiss A TPO Or Remove Conditions Of
Bond? .................................................................................................... A:11
ii

L.
B.

What Steps Can I Take To Increase The Safety Of The Victim
And His Or Her Family? ....................................................................... A:12

APPENDIX B - ASSESSING FOR LETHALITY ......................................... B:1
Table Of Contents ..............................................................................................B:1
Introduction ..........................................................................................................B:2

C.

A.

Lethality Factor List .................................................................................B:3

B.

Lethality Factors ......................................................................................B:3

C.

Practical Application of Lethality Factors ...............................................B:6

APPENDIX C - SCREENING FOR DOMESTIC VIOLENCE .................. C:1
A.
Determining if Domestic Violence is an Issue. .......................................C:1
B

D.
E.

Screening for Common Domestic Violence Patterns. .............................C:1

APPENDIX D - CHECKLIST FOR EX PARTE APPLICANTS ................ D:1
APPENDIX E - FIREARMS............................................................................ E:1
Table Of Contents .............................................................................................. E:1
A.

Firearms And Temporary Protective Orders............................................ E:3

B.

Misdemeanor Crimes of Domestic Violence and Federal
Firearms Prohibitions ............................................................................... E:9

F.

APPENDIX F - PROTECTION ORDER INFORMATION
SHEET ................................................................................................................F:1
A.
Information For Petitioners ...................................................................... F:1

G.

APPENDIX G - FAMILY VIOLENCE INTERVENTION
PROGRAMS (FVIP) ........................................................................................ G:1
Table Of Contents ............................................................................................... G:1
A.

Differences Between Anger Management And Family
Violence Intervention Programs (FVIPs) ............................................... G:2

B.

General Information on Monitoring And Enforcing TPO
Conditions ............................................................................................... G:3

C.

Monitoring by the Court - See Appendix S-Judicial
Compliance Hearings .............................................................................. G:5

D.

GCFV Contact Information .................................................................... G:5

State Certified Family Violence Intervention Programs ..................................... G:5
H.

APPENDIX H - IMMIGRANTS AND REFUGEES ..................................... H:1
Table Of Contents ............................................................................................... H:1
A.

INTRODUCTION TO IMMIGRANTS AND REFUGEES .................. H:3

B.

BASIC IMMIGRATION TERMINOLOGY AND
DOCUMENTATION ............................................................................. H:3

C.

WORK AUTHORIZATION ELIGIBILITY .......................................... H:7
iii

D.

GROUNDS OF DEPORTABILITY....................................................... H:8

E.

Sentencing Considerations ...................................................................... H:9

F.

Immigration Relief for some Domestic Violence Victims ..................... H:9

G.

THE ILLEGAL IMMIGRATION REFORM AND
ENFORCEMENT ACT OF 2011 (HB87) ........................................... H:13

H. HAGUE CONVENTION: INTERNATIONAL KIDNAPPING ............... H:14

I.

J.

K.

I.

LANGUAGE ACCESS TO INTERPRETERS IN DOMESTIC
VIOLENCE CASES ............................................................................. H:16

J.

ADDITIONAL SAFEGUARDS FOR PROTECTIVE
ORDERS AND BOND ORDERS ........................................................ H:16

K.

GEORGIA SECURITY AND IMMIGRATION
COMPLIANCE ACT (SB529) AND HOW IT IMPACTS
IMMIGRANT VICTIMS OF DOMESTIC VIOLENCE. .................... H:18

L.

VAWA CONFIDENTIALITY ............................................................. H:18

M.

Resources For Battered Refugee And Immigrant Women In
Georgia .................................................................................................. H:21

1.

Refugee and Immigrant Battered Women Programs: All
caseworkers and advocates from below listed projects are
bilingual, bicultural and trained in domestic violence issues.
They are all members of TAPESTRI, Immigrant and Refugee
Coalition Challenging Gender Based Oppression. .............................. H:21

APPENDIX I - MENTAL ILLNESS AND THE COURT ............................. I:1
Table Of Contents ................................................................................................. I:1
A.

Introduction ............................................................................................... I:3

B.

Diagnoses - DSM-IV Lite* ....................................................................... I:4

C.

Medications Used In Psychiatry* ........................................................... I:25

D.

Mental Health Professionals* ................................................................. I:32

APPENDIX J - GUARDIANS AD LITEM IN FAMILY
VIOLENCE CASES .......................................................................................... J:1
Table Of Contents ............................................................................................... J:1
A.

Value of Guardians Ad Litem in Family Violence Cases......................... J:2

B.

Uniform Superior Court Rule 24.9 -- Appointment,
Qualification and Role of a Guardian ad Litem. ....................................... J:3

C.

Distinguishing the Roles of Guardian ad Litem and Child’s
Attorney .................................................................................................... J:7

APPENDIX K - MEDIATION ........................................................................ K:1
Table Of Contents ............................................................................................. K:1
A.

Introduction ............................................................................................. K:2
iv

B.
L.

APPENDIX L - UNIFORM FORMS .............................................................. L:1
A.
Introduction .............................................................................................. L:1
B.

M.

N.

Georgia Commission on Dispute Resolution .......................................... K:6

Family Violence Forms............................................................................ L:1

APPENDIX M – GEORGIA PROTECTIVE ORDER REGISTRY .......... M:1
Table Of Contents ............................................................................................. M:1
A.

The Creation of the Georgia Protective Order Registry ......................... M:2

B.

Specific Benefits of GPOR to the Court ................................................. M:2

C.

Other Search Features of the Registry .................................................... M:3

D.

File Retention and Standardized Forms .................................................. M:3

E.

Agencies with GPOR Access.................................................................. M:3

F.

Gaining Access to GPOR Website ......................................................... M:4

G.

For More Information ............................................................................. M:4

APPENDIX N – VISITATION, CUSTODY, PROTECTION AND
SUPPORT OF CHILDREN ............................................................................. N:1
Table Of Contents ............................................................................................. N:1
Introduction ......................................................................................................... N:2

O.

A.

Issues for Judicial Consideration in Cases Involving Domestic
Violence .................................................................................................. N:2

B.

Suggestions for Consideration in Cases Involving Domestic
Violence .................................................................................................. N:2

C.

Safety Focused Parenting Plan................................................................ N:6

APPENDIX O – CHILDREN AND DOMESTIC VIOLENCE ................... O:1
Table Of Contents ............................................................................................. O:1
Introduction ......................................................................................................... O:2

P.

A.

Effects of Domestic Violence on Children ............................................. O:3

B.

Termination of Parental Rights ............................................................... O:6

C.

Best Practices .......................................................................................... O:6

APPENDIX P – CYBERSTALKING AND DIGITAL ABUSE ....................P:1
Table Of Contents .............................................................................................. P:1
Introduction .......................................................................................................... P:2
A.

Cyber Crimes ........................................................................................... P:3

B.

Georgia Stalking Law .............................................................................. P:4

C.

Use of Technology to Stalk...................................................................... P:5

D.

Application of Stalking Laws in Cyberstalking cases ............................. P:6
v

Q.

E.

Venue in Cyberstalking............................................................................ P:7

F.

Internet Resources .................................................................................... P:8

APPENDIX Q – CONFIDENTIALITY OF DOMESTIC
VIOLENCE ORGANIZATIONAL RECORDS ............................................ Q:1
Table Of Contents ............................................................................................. Q:1
Introduction ......................................................................................................... Q:2

R.

A.

Overview Chart ....................................................................................... Q:3

B.

Confidentiality ........................................................................................ Q:5

C.

Privilege .................................................................................................. Q:6

D.

Right to Privacy ...................................................................................... Q:9

APPENDIX R – RESTITUTION, VICTIM’S COMPENSATION,
AND PUBLIC BENEFITS ................................................................................... 1
Table Of Contents ................................................................................................. 1
A. Introduction ........................................................................................................ 2
B. Restitution .......................................................................................................... 2
C. Victim’s Compensation ...................................................................................... 5
D. Alternative Options ............................................................................................ 5
Beyond seeking compensation for injuries that occurred as a result of
violence, survivors have other recourses available to them to
alleviate economic issues that arise and may persist after the
domestic violence relationship has ended. .................................................. 5

S.

APPENDIX S – JUDICIAL COMPLIANCE HEARINGS ................................... 1
A. Introduction ........................................................................................................ 2
B. Offender Accountability..................................................................................... 2
C. Domestic Violence Courts ................................................................................. 3
D. Judicial Review Hearings................................................................................... 4
E. Georgia Model Practices .................................................................................... 5

T.

APPENDIX T – STRANGULATION ..................................................................... 1
Introduction ............................................................................................................. 2
A.What is strangulation? ......................................................................................... 2
B.What are signs and symptoms of strangulation? ................................................. 2
C.How common is strangulation? ........................................................................... 3
D.Why focus on strangulation?............................................................................... 4
E.Is strangulation a lethality factor? ....................................................................... 4
F.How is strangulation minimized? ........................................................................ 4
vi

H.What else can communities do? .......................................................................... 5
U.

APPENDIX U--GEORGIA CRIME VICTIMS BILL OF RIGHTS ............... 1
A.Introduction ......................................................................................................... 2
B.Statute .................................................................................................................. 2
C.VINE System....................................................................................................... 3
D.Notification for Victims ...................................................................................... 3
RESOURCES ......................................................................................................... 1

BIBLIOGRAPHY ...................................................................... 1
CASE CITATION INDEX ........................................................ 1
GLOSSARY ............................................................................... 1
INDEX ....................................................................................... 1

vii

ACKNOWLEDGEMENTS
We gratefully acknowledge the generous assistance provided by the many
individuals and organizations who have helped make this benchbook
possible since 2005. UGA Law School, Associate Professor Alex Scherr,
Director of the Civil Clinics, who authored the original civil legal sections
of this benchbook and who with Susan Schaffer, Managing Attorney of
the Family Violence Clinic, supervised the law students who provided the
research.
Sheila Chrzan, staff attorney at Atlanta Legal Aid Society, updated the
civil chapters in the 3rd, 4th and 5th Editions. Ms. Chrzan has worked in
the field of domestic violence for over 15 years helping to create the
Protective Order Registry, the Protective Order forms and the provision
limiting mutual Protective Orders.
UGA Law School Professor Alan Cook, Director of the Prosecutorial
Clinic Program and former District Attorney in the Alcovy Judicial
Circuit, who authored the criminal legal sections of this benchbook and
reviewed the evidence updates in the 7th edition.
Mike Brigner, author of the Ohio Domestic Violence Benchbook, and the
Family Violence Prevention Center at the Ohio Office of Criminal Justice
Services who graciously allowed us to adapt the dynamics section of their
benchbook for the original dynamics appendix.
Sara Kluberdanz, UGA School of Law class of 2012, who provided
research for the 6th Edition updates, and authored/co-authored several new
appendices in the 6th ,7th and 8th editions.
Camille Gregory, Foundation Fellow at UGA, who provided research and
co-authored part of the 6th Edition mediation appendix.
Cathy Mong, Project Safe volunteer, who edited many of the 6th Edition
appendices.
Van’Nessa Lotson, law student at UGA, who provided research for the 7th
Edition updates.
Greg Loughlin and the Hon. Stephen Kelley, who provided support,
encouragement and resources for the 7th Edition.
The numerous individuals practicing in diverse areas of domestic violence across the
state who gave their time and expertise by authoring (*) full or partial sections and/or
reviewing this document, and the previous editions, to make this a truly inclusive and
comprehensive resource:

viii

Honorable Robert W.
Adamson*
Honorable Michael N.
Annis
Markette Baker
Honorable James F. Bass
Dick Bathrick*
Honorable
Jerry
W.
Baxter
Honorable Cynthia J.
Becker
Daryl Beggs*
Honorable Winston P.
Bethel
Aparna Bhattacharyya*
Louise Bill
Honorable Joe C. Bishop
Charlie Bliss
Honorable Daniel A.
Bloom*
Honorable William F.
Brogdon
Honorable Carl C. Brown
Wanda Joyce Brown
Rebecca Bukant
David Asher Burk*
Honorable John C. Carbo
Michelle Carney*
Russell Cate
Cynthia Clanton
Vidal Cordova*
Alex Delaney*
Honorable
Neal
W.
Dickert
Jay Eisner
Honorable Samuel C.
Finster
Honorable H. Gibbs
Flanders
James R. Fletcher, II
Eric Fulcher
Russell Gabriel*
Karen Geiger*

Honorable
John
E
Girardeau
Wendy Glasbrenner
William Cody Goff
Honorable Kathlene F.
Gosselin
Sam Gowin
Camille Gregory*
Nancy Grigsby
Honorable Divida Gude
Stephanie Harris
Jeff Haynie
Nancy Hunter*
Nicholas Tait Hunter
Angela Hurley
Sunita Iyer *
Honorable Hilda James
Honorable Steve C. Jones
Honorable
W.
Alan
Jordan
Nisha Karnani*
Vicky O. Kimbrell*
Sara Kluberdanz*
Rex M. Lamb, III
Amanda Lang
Honorable Ronnie Joe
Lane
Honorable
N.
Kent
Lawrence
Yolanda Lewis
Honorable
Jeannette
Little
Van’Nessa Lotson
Greg Loughlin*
Honorable Edward D.
Lukemire
John Maynard
Elizabeth McRae
Kerry E. McGrath*
Mike Mertz
Honorable Frank C. Mills
Honorable Barbara J.
Mobley
Melissa Morse

ix

Shaylah E. Nunn
Jane Okrasinski*
Honorable
Patsy
S.
Padgett
Honorable J. Lee Parrott
Julia Perilla*
Tina Petrig*
Joan Prittie*
Kimbley Puckett*
Honorable Wayne M.
Purdom
James Purvis
Jill Radwin
Kirsten Rambo
Rathi Rao*
Raytheon “Raye” Rawls
Richard D. Reaves
Heidi Rine
Meg Rogers*
Linda E. Saltzman
Honorable Clarence F.
Seeliger
Shelley Senterfitt
Samuel E. Skelton
Dustin Smith
Elizabeth Ann Snead

Honorable Charles G.
Spalding
Martin Spratlin
Honorable Lawton E.
Stephens
Meredith Stepp
Leanna Stromberg
Honorable Ben Studdard,
III
Honorable David R.
Sweat
Nancee E. Tomlinson
Taylor Thompson*
Vanessa Elizabeth Volz
Honorable
Daphne
Walker
Honorable Peggy H.
Walker
Aaron Louis Walter
Honorable
Duncan
Wheale
Rebecca White
Sujata Winfield
Honorable C. David
Wood

We especially thank Nancy Hunter who served as Project Manager for the
first five editions, and lovingly sheperded this resource from its original
concept as a chapter in the Superior Court Benchbook to the wonderful
compendium it is today. She provided generous encouragement and
gracious support for the 6th edition changes.
The 8th Edition of the Georgia Domestic Violence Benchbook was funded
through the Georgia Commission on Family Violence.
In Memory of:
The Honorable Rowland W. Barnes, Superior Court Judge in the
Atlanta Circuit, who lost his life in 2005 at the hands of a defendant he
was trying for acts of intimate partner violence.

x

Dr. Linda E. Saltzman, CDC scientist and researcher, whose
groundbreaking work has helped define the field of intimate partner
violence and led to numerous advancements in violence prevention.

Indexes and glossary by Julie Maynard, Sara Kluberdanz and Chris
Garland.

xi

PREFACE
When Rich Reaves, Executive Director of the Institute of Continuing Judicial Education,
first approached me about the 6th Edition of the benchbook, we discussed how funding
and time restraints would necessitate a disciplined, limited approach to updates. But just
as Nancy Hunter discovered years before (when the idea of a domestic violence chapter
in the existing Superior Courts Benchbook morphed into a stand-alone book), the topic is
so rich and the need so compelling that updates in one section led to additions in another
and my discipline began to disappear.
My experience with the 7th and 8th Editions have been similar, and similarly rewarding. In
addition to updating statutory and case law, the 8th Edition features added material on
digital abuse, strangulation, and crime victim rights and compensation.

While working on this edition, I often reflected on my early efforts in domestic violence
over twenty years ago as a law clerk and later staff attorney at the Prisoner Legal
Counseling Project. Identifying 78 women in prison for killing their abusive partners and
preparing clemency petitions for many of them was painstaking and often heartbreaking,
but it was a matchless introduction to the scope and complexity of this issue. My work
back then led me to—and continues to inform—my work now, and I owe a debt to
mentors from those days like Maureen Cahill and Marti Loring, as well as to the many
women in prison who trusted us with their lives.
I am also grateful to Professor Paul Kurtz, Associate Dean of the University of Georgia
School of Law, who retired in May, 2013. He taught me family law when I was in
school, and he has taught me many more lessons as a mentor and friend.
As Executive Director of Project Safe, I have consulted the benchbook frequently over
the years. It is a resource, not just for judges, but for all of us engaged in the struggle to
end domestic violence, and one that I hope will continue to grow and change in the years
to come.
Joan Prittie, J.D.
Editor and Principal Author

xii

INTRODUCTION
Domestic Violence is not an easy subject to discuss. You can anticipate
intense disagreement depending upon the background and areas of interest
of any participant in the conversation. Unfortunately, this leaves retreat
from the forum as a very viable and maybe even a wise course of action.
That option was considered by the Benchbook Committee when we were
asked to develop a domestic violence bench book. I am glad we did not
cut and run.
Perhaps discussion of the subject will become easier if we reflect on three
important thoughts as we enter the forum.
Domestic violence is a monumental problem of our time. The
phenomenon cuts across social, economic, cultural, and ethnic grounds. It
is a common problem in Fulton, Rabun, Jackson, and Thomas Counties.
Response to the problem is costly to law enforcement, health care, social
services, education, families and to our judicial system. The personal
harm to the physical and emotional well being of the victim is
overwhelming.
Domestic violence stimulates a passionate response from many who have
experienced it or worked in areas where the impact is most intensely felt
or who have felt futility in trying to bring reform to our law enforcement,
social services, and the judicial system in order to address the problem.
Cynicism abounds on all sides and constructive criticism is often heard as
negativism.
The legal system put in place to address the problem is less than perfect.
That system ignores the adversarial system long adhered to in our courts,
encourages pro se representation often to the peril of the victim, stretches
fundamental ideas of notice and due process and imposes upon the
judiciary a proactive social services role foreign to the traditional role of
neutrality. The system apparently anticipates staff and resources, which
do not exist and leaves cases with mandatory orders which cannot be
enforced. The shortcomings in our present system coupled with our
negative response to it have resulted in victims who are not served, cases,
which have fallen through the cracks, respondents who are harmed by
abuse of the process and judges who are more prone to “fight the
problem” rather than to seek ways to improve the system.
The impact of domestic violence on our communities and our courts will
continue to grow. We have no choice but to improve our methods and
mechanisms to deal with domestic violence cases. Open debate is
essential.

xiii

It is the hope of the Benchbook Committee and the dedicated
professionals, who contributed to this effort, that this Domestic Violence
Benchbook will serve as a cornerstone to help us understand, address and,
in time, discover more complete solutions to this profound problem.
Robert W. Adamson
Benchbook Committee Chair (2005)
Council of Superior Court Judges

xiv

1

CHAPTER 1 – CIVIL PROTECTIVE ORDERS

1

CIVIL PROTECTIVE ORDERS
1.1

Overview
1.1.1 This chapter of the Domestic Violence Benchbook covers civil
protective orders. It reviews the types of protective orders, with
the required statutory findings. It describes the civil protective
order process from beginning to end: jurisdiction, and venue; the
issuance of ex parte orders; pre-hearing activity; and the hearing
itself. The chapter discusses the remedies available in domestic
violence actions; consent decrees; and mediation of cases
involving issues of domestic violence. The chapter concludes with
discussions of the enforcement, duration, modification, and
extension of civil orders.
1.1.2 Several studies now show that civil protective orders provide
safety for families in ways that no other remedy can. The National
Center for State Courts (NCSC) determined that in the vast
majority of cases, civil protection orders are effective. (Keilitz et
al, 1997). That effectiveness depends on the specificity and
comprehensiveness of the relief that is granted (See Appendix K,
Paragraph D - Safeguards for Judicial Consideration in Mediated
Agreements) and on how well the orders are enforced.
Effectiveness was measured in two areas 1) improvement in
petitioners well-being (quality of life, enhanced feelings of safety
and self esteem) and 2) improvement in the problems stated in the
petition (physical and psychological abuse, stalking, calling at
home and work, coming to the home, etc.). One major study from
Seattle reported an 80% reduction in police-reported physical
violence for women who obtained a 12-month protective order
after an incident of domestic violence. (Holt et al, 2002) In this
study, shorter (2 week), temporary orders were found to be less
effective than no order at all. Another study showed that protective
orders do work for many victims. (T.K. Logan, 2009) This study
showed that half (50%) of victims experienced no violations of the
DVO during the 6 month follow-up period, For those victims who
did experience violations, every single type of violence and abuse
was significantly reduced during the 6 month follow up period
compared to the 6 months before the protective order was issued.
Further, many victims appreciated the orders and the help they
received from the justice system. Accordingly, victims’ fear of
future harm was significantly reduced during the 6 months after the
order was issued. The vast majority of victims thought the
protective order was fairly or extremely effective (77%-95%) 6
months after the order was issued. Only 4% of victims requested to

1:1

1.1.3

1.1.4

1.2

drop the protective order during the 6 months after the protective
order was issued. Id.
Significantly for the court, the NCSC study confirms that abused
women are especially vulnerable to physical violence after they
initiate court proceedings; they assume considerable risk when
they claim their rights under the law. However, a recent study
(Bridges, Tatum and Kunselman, 2008) revealed that limiting
firearm availability once a protective order has been served may
help to reduce family homicide rates. Across 47 States, the authors
found an inverse correlation between family homicide rates and
States mandating firearm restrictions during a protective order.
Georgia law offers three types of protective orders: family
violence protective orders, Section 1.2; stalking protective orders,
Section 1.3; and employer protective orders, Section 1.4.

Family Violence Protective Orders (O.C.G.A. § 19-13-1 et seq.)
1.2.1 To issue a family violence order, a court must find that:
A.
The petitioner has or had a particular relationship (See
Section 1.2.2) to the respondent; and
B.
The respondent has engaged in one or more particular types
of violence (See Section 1.2.3); and
C.
The petitioner needs protection (See Section 1.2.4) against
future violence by the respondent.
1.2.2 Relationships:
A.
O.C.G.A. § 19-13-1 requires that the petitioner prove that
one of the following relationships exist between petitioner
and respondent O.C.G.A. § 19-13-1 (first paragraph):
1.
past spouses.
2.
present spouses.
3.
parents of the same child (unmarried parents).
4.
parent and child.
5.
stepparent and stepchild.
6.
foster parent and foster child.
7.
persons now living in the same household.
8.
persons formerly living in the same household.
B.
When Cohabitation is Not Required: Proof of a spousal,
parental, stepparental or foster parental relationship permits
the court to issue an order without proof of cohabitation.
C.
When Cohabitation Is Required: Proof that petitioner
and respondent are “living or formerly living in the same
household” can extend the act’s protection to relationships
other than those specified by the statute. For example,
proof of cohabitation can allow a court to permit petitions
between siblings; extended family members; roommates;
unmarried intimate partners; and same-sex couples.
Questions a court may have to resolve include what the

1:2

term “living together” means, and what constitutes a
“household”; no Georgia cases interpret these terms.
D.
Excluded Relationships: Only relationships specified in
the statute qualify under the relationship requirement.
Many relationships do not meet that requirement: for
example, a dating relationship between petitioner and
respondent (where cohabitation does not and has not
occurred) does not satisfy the relationship test. However,
the same petitioner might be able to obtain a stalking order,
(See Section 1.3) or benefit from an employer order (See
Section 1.4)
E.
Petitions on Behalf of Minors: The statute does not
permit minors to sue directly. The statute does permit “a
person who is not a minor [to] seek relief on behalf of a
minor.” O.C.G.A. § 19-13-3(a).
F.
Incidence of Abuse in Different Relationships: The most
rapid growth in domestic relations caseloads is occurring in
domestic violence filings. Between 1989 and 1998,
domestic violence filings in state courts increased 178
percent. (Levey et al, 2000) Abusers are found in every
type of domestic relationship causing adults, children, and
the elderly to suffer physical and emotional harm. Intimate
partner violence is primarily a crime against women -- in
1998, females were the victims in 72% of intimate murders
and the victims of about 85% of non-lethal intimate
violence. (
G.U.S. Department of Justice, 2005). On average, more than three
women are murdered by their husbands or boyfriends in
this country every day. (Bureau of Justice Statistics Crime
Data Brief, 2003). Approximately one in five female high
school students reports being physically and/or sexually
abused by a dating partner. (Silverman et al., 2001).
Studies suggest that between 3.3 to 10 million children
witness some form of domestic violence annually.
(Carlson, 1984) (Straus, 1992); 50% of men who
chronically abuse their partners also abuse their children.
(Straus and Gelles, 1990).
H.
Incidence of Abuse in Underserved Populations: For
underserved populations, the situation is even more dire.
Increasing evidence indicates that there are large numbers
of immigrant women trapped in violent relationships.
These women may not be able to leave an abusive
relationship because of immigration laws, language
barriers, social isolation, and lack of financial resources.
(Orloff and Little, 1999). Violence against women with
disabilities is alarmingly high. Wilson and Brewer reported

1:3

1.2.3

1:4

that women with developmental disabilities were 10.7
times as likely to be sexually assaulted as other women
(Wilson and Brewer, 1992). Relatives or intimates
committed more than 1 in 4 of the murders against persons
age 65 or older" (Crimes Against Persons Ages 65 and
Older, 1992-1997).
Violence:
A.
A petitioner must prove violence using the definitions of
various specified criminal offenses, O.C.G.A. § 19-3-1(1)
(felonies), (2) (other crimes):
1.
“any felony”: The statute does not list these
felonies by name, and does not distinguish between
violent and non-violent felonies.
2.
“simple battery”: “A person commits the offense
of simple battery when he or she either: (1)
Intentionally makes physical contact of an insulting
or provoking nature with the person of another; or
(2) Intentionally causes physical harm to another.”
O.C.G.A. § 16-5-23(a).
3.
“battery”: “A person commits the offense of
battery when he or she intentionally causes
substantial physical harm or visible bodily harm to
another.” O.C.G.A. § 16-5-23.1(a). “Visible
bodily harm” is defined as “harm capable of being
perceived by a person other than the victim, [which]
may include, but is not limited to, substantially
blackened eyes, substantially swollen lips or other
facial or body parts, or substantial bruises to body
parts.” Id, (b).
4.
“simple assault”: “A person commits the offense
of simple assault when he or she either: (1)
Attempts to commit a violent injury to the person of
another; or (2) Commits an act which places another
in reasonable apprehension of immediately
receiving a violent injury.” O.C.G.A. §16-5-20(a).
5.
“aggravated assault”: “A person commits the
offense of aggravated assault when he or she
assaults: (1) With the intent to murder, to rape, or
to rob; (2) With a deadly weapon or with any
object, device, or instrument which, when used
offensively against a person, is likely to or actually
does result in serious bodily injury; or (3) A person
or persons without legal justification by discharging
a firearm from within a motor vehicle toward a
person or persons.” O.C.G.A. § 16-5-21(a).
6.
“stalking”: O.C.G.A. §§ 16-5-90.

“A person engages in the offense of stalking
when he or she follows, places under
surveillance, or contacts another person at or
about a place or places without the consent
of the other person for the purpose of
harassing and intimidating the other person.”
O.C.G.A. § 16-5-90(a) The statute further
defines the following terms:
(1)
“computer” and “computer
network.”
(2)
“contact”
(3)
“place or places”
(4)
“harassing and intimidating”
(b)
Stalking also occurs when a person violates
an existing stalking order by broadcasting or
publishing “the picture, name, address, or
phone number” of the person protected by
the order. O.C.G.A. § 16-5-90(a)(1) and
(2).
(c)
The Family Violence Act does not list
aggravated stalking specifically. However,
as a felony offense, aggravated stalking falls
within the definition of “any felony”. See
O.C.G.A. § 16-5-91; O.C.G.A. § 19-13-1
(1) & (2).
(d)
Conduct, which meets the statutory
definition of stalking might justify both a
family violence order and a stalking order.
(See Section 3.2.7 - Stalking Order
Remedies).
(e)
Stalking cannot occur in the defendant’s
home. O.C.G.A. § 16-5-90(a)(1).
“criminal damage to property”
(a)
First degree: “A person commits the offense
of criminal damage to property in the first
degree when he: (1) Knowingly and without
authority interferes with any property in a
manner so as to endanger human life; or (2)
Knowingly and without authority and by
force or violence interferes with the
operation of any system of public
communication, public transportation,
sewerage, drainage, water supply, gas,
power, or other public utility service or with
any constituent property thereof.” O.C.G.A.
§16-7-22(a).
(a)

7.

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Second degree: “A person commits the
offense of criminal damage to property in
the second degree when he: (1)
Intentionally damages any property of
another person without his consent and the
damage thereto exceeds $500.00; (2)
Recklessly or intentionally, by means of fire
or explosive, damages property of another
person; or (3) With intent to damage, starts a
fire on the land of another without his
consent.” O.C.G.A. §16-7-23(a).
“unlawful restraint”:
(a)
Kidnapping: “A person commits the offense
of kidnapping when he abducts or steals
away any person without lawful authority or
warrant and holds such person against his
will.” O.C.G.A. 16-5-40(a). Requires
asportation.
(b)
False imprisonment: “A person commits the
offense of false imprisonment when, in
violation of the personal liberty of another,
he arrests, confines, or detains such person
without legal authority.” O.C.G.A. § 16-541. This does not require asportation.
“criminal trespass”:
(a)
Damage to property: “A person commits
the offense of criminal trespass when he or
she intentionally damages any property of
another without consent of that other person
and the damage thereto is $500.00 or less or
knowingly and maliciously interferes with
the possession or use of the property of
another person without consent of that
person.” O.C.G.A. §16-7-21(a). Damage
to property that another person has an
interest in is criminal trespass. Ginn v.
State, 251 Ga. App. 159 (2001) Newsome
v. State, 289 Ga. App. 590 (2008).
(b)
Entry and remaining without permission:
“A person also commits criminal trespass
“when he or she knowingly and without
authority: (1) Enters upon the land or
premises of another person or into any part
of any vehicle, railroad car, aircraft, or
watercraft of another person for an unlawful
purpose; (2) Enters upon the land or
(b)

8.

9.

1:6

premises of another person or into any part
of any vehicle, railroad car, aircraft, or
watercraft of another person after receiving,
prior to such entry, notice from the owner,
rightful occupant, or, upon proper
identification, an authorized representative
of the owner or rightful occupant that such
entry is forbidden; or (3) Remains upon the
land or premises of another person or within
the vehicle, railroad car, aircraft, or
watercraft of another person after receiving
notice from the owner, rightful occupant, or,
upon proper identification, an authorized
representative of the owner or rightful
occupant to depart.” O.C.G.A. § 16-721(b).
B.
Psychic or emotional harm: The statute does not specify
psychic or emotional harm (either of adults or children) as a
basis for finding “family violence.” Only the offense of
stalking includes a requirement to prove both “emotional
distress” and “reasonable fear for their safety or the safety
of their immediate family.” The statute does not exclude
proof of psychic or emotional harm, which may be relevant
to other issues, including remedy.
C.
Experts recognize that emotional abuse almost always accompanies
physical violence (Carpiano, 1998); they also found that psychological domination far
exceeds the physical and sexual assaults most often seen in the courts. As Herman
(1992) relates, “Methods of psychological control are designed to instill terror and
helplessness and to destroy the victim's sense of self in relation to others.” Psychological
abuse is the glue that binds the physical types of abuse together (Hunter, 2000). Once the
abuser has used physical or sexual violence it is not necessary to use it as often; threats
and intimidation will keep the abused person in a constant state of fear allowing for their
domination. (Herman, 1992).
D.
Considering that domestic violence is under-reported, and
that physical violence accounts for most reports, it is clear
that psychological abuse is extensive. Whereas, bones and
bruises heal within a few months, psychological abuse can
have a lasting impact. Stark and Flitcraft (1992) found
battering was the single most important context yet
identified for female suicide attempts. Almost 30 percent
of the women in their study who attempted suicide were
battered. (See Appendix A, Different Forms or Tactics of
Abuse)
E.
Threats: The family violence statute permits issuing a
protective order based on “threats” which satisfy the
requirements for “assault” or “aggravated assault”. The

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1.2.4

1:8

statute only recognizes threats to the petitioner or to
children.
F.
“Reasonable Discipline”: “Family violence shall not be
deemed to include reasonable discipline administered by a
parent to a child in the form of corporal punishment,
restraint, or detention.” O.C.G.A. § 19-13-1 (last
sentence). A stinging slap to a disrespectful child, with no
resulting bruises, has been held to not constitute “family
violence”. Buchheit v. Stinson 260 Ga. App. 450, 455 - 456
(2003). Lack of visible harm does not prevent such a
finding; and physical discipline might in some cases
constitute “family violence”. Id.
Need for Protection
A.
Likelihood of future violence: The court must find that
“family violence has occurred in the past and may occur in
the future” to justify ordering relief that is “necessary to
protect the petitioner or a minor of the household from
violence.” O.C.G.A. § 19-13-3 (b). The occurrence of
past abuse standing alone does not justify issuing an order;
protection must be necessary to prevent violence that “may
occur in the future.” At the same time, the occurrence of
past violence might raise an inference about the behavior
alleged by the petitioner. For example, on one list of 18
risk assessment factors for violence, past violence was the
most important or heavily-weighted predictor of future
violence by that same individual (Meloy, 2000). (See
Appendix B - Assessing for Lethality)
B.
Timing: The Georgia Court of Appeals has stated that
although the recency of past violence may bear upon the
likelihood of future violence, there is no requirement that
the violence be recent. Lewis v. Lewis, 728 S.E.2d 741
(2012). In Lewis, the petitioner sought to obtain an ex parte
temporary restrainng order when there had not been any
violence for a year. The Court held that the statute under
which the petitioner sought a protective order did not
absolutely require her to show a “relatively recent” act of
family violence. The Court explained that the plain
language of the statute requires “that the petitioner allege
and prove by a preponderance of the evidence that the
person against whom the protective order is sought has
engaged in family violence at some specified time in the
past and that he may engage in such violence again at some
unspecified time in the furture”. Id.
C.
Fear: The statute does not require a finding that the
petitioner fears the respondent, nor does it require that the
court assess the “reasonableness” of any fear the petitioner

D.

E.

1.3

does have for the respondent. However, a finding of fear
does allow an inference that abuse will occur in the future:
the petitioner’s fear tends to indicate the petitioner’s belief
that past violence will recur in the future. At the same
time, a court makes its own assessment of whether violence
“may occur in the future.” The court is not required to
accept the petitioner’s belief as conclusive and may assess
the petitioner’s fears in light of all the available evidence.
Evidence exists that victims deny the existence of fear as a
way of coping with the danger and lack of control they
experience (Herman, 1992) (DSM-IV-TR, 2000). A court
might consider questioning the victim not only directly
about their sense of fear, but also indirectly. For example,
the court might inquire whether the petitioner believes that
the respondent is capable of hurting the petitioner or the
petitioner’s family (Hunter, 2002).
Stalking: Although stalking is most reported after the
victim has left the relationship it also occurs during the
relationship. Logan, Shannon and Cole (2007) found
women stalked by their partners experienced significantly
higher rates of psychological abuse, physical abuse, sexual
abuse and injury compared to women who were not stalked
by their violent partner. Not surprisingly, these women
suffered more Post Traumatic Stress Disorder and anxiety
symptoms as well.

Stalking Protective Orders (O.C.G.A. § 16-5-94)
1.3.1 To issue a stalking protective order, a court must find that:
A.
The respondent has stalked the petitioner; and
B.
The petitioner needs protection against future stalking by
the respondent.
C.
Stalking protective orders do not require proof of a specific
relationship; any “person who is not a minor who alleges
stalking by another person may seek a restraining order.”
O.C.G.A. § 16-5-94(a). “A person who is not a minor may
also seek relief on behalf of a minor by filing such a
petition.” Id. A court may issue a stalking order even
where the parties had never been married to each other, did
not reside in the same house, and did not have children
together. Giles v. State, 257 Ga. App. 65, 68 (2002).
1.3.2 Stalking
A.
A person engages in stalking under O.C.G.A. §§ 16-590(a), cross-referenced by O.C.G.A. § 16-5-94(a) “when:
1.
he or she follows, places under surveillance, or
contacts another person
2.
at or about a place or places
3.
without the consent of the other person

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4.

B.

C.

D.

E.

1:10

for the purpose of harassing and intimidating the
other person” or
5.
in violation of a protective order, bond, or condition
of probation prohibiting harassment of another
person, broadcasts or publishes the name, address,
or phone number of the person for whose benefit,
the bond, order, or condition was made and the
person making the broadcast or publication had
reason to believe it would cause such person to be
harassed or intimated by others. O.C.G.A. § 16-590(a)(2).
“Contact”: The statute defines “contact” as “any
communication”, including but not limited to: “in person,
by telephone, by mail, by broadcast, by computer, by
computer network, or any other electronic device.” The
terms “computer” and “computer network” have the same
definitions as in the Computer Systems Protection Act,
O.C.G.A. § 16-9-92 (1) (“computer”) and (2) (“computer
network”).
“Place or places”: the statute protects against stalking
behavior at “any public or private property occupied by the
victim.” Id. The statute does not restrict the locations at
which stalking can occur to the petitioner’s residence or
workplace. Instead, a court may find stalking to have
occurred in any location “occupied” by the petitioner, with
one exception: stalking cannot occur at the defendant’s
residence. Id. If the alleged stalking occurred through
means other than in person contact, the term “place or
places” refers to the location “where such communication
is received.” Id.
“Harassing and intimidating”: under O.C.G.A. § 16-590(a)(1), these terms mean:
1.
“a knowing and willful course of conduct
2.
directed at a specific person
3.
which causes emotional distress
4.
by placing such person in reasonable fear for
5.
such person’s safety or the safety of a member of
his or her immediate family,
6.
by establishing a pattern of harassing and
intimidating behavior, and
7.
which serves no legitimate purpose.”
“Course of conduct”: A court may not issue a stalking
order based solely on a single act. The petitioner must
prove a “course of conduct”, which involves a “pattern of
harassing and intimidating behavior”. O.C.G.A. § 16-5-90

1.3.3

(a)(1). This course of conduct must also “serve no
legitimate purpose,” a term the statute leaves undefined.
F.
Psychic or emotional harm: stalking rests on a finding
that the respondent’s conduct caused “emotional distress”;
the statute does not require physical injury, or the threat of
physical injury.
G.
Threats: a stalking order may be issued based on proof of
threats to the petitioner’s “safety.”
1.
The term “safety” is different than the
corresponding language required by the family
violence order statute (“reasonable apprehension of
immediately receiving a violent injury”, O.C.G.A.
§§ 19-3-1(2) and 16-5-20(a)). Unlike the family
violence statute, a stalking order can be issued for
threats to the “immediate family” of the petitioner,
not just to the petitioner alone.
2.
The statute requires petitioner to show a connection
between the respondent’s actions and the safety of
the petitioner or the petitioner’s family. For
example, the Court of Appeals reversed a portion of
a permanent stalking order which prohibited
respondent from publishing or discussing the
petitioner’s medical condition: “there was no
evidence that publishing or discussing the
petitioner's medical condition with others would
threaten her or her family's safety.” Collins v.
Bazan, 256 Ga. App. 164, 166, 568 S.E.2d 72, 74
(2002).
Need for protection:
A.
Future stalking: A court must find not only that stalking
has occurred in the past, but also that stalking “may occur
in the future.” O.C.G.A. § 16-5-94(c); a court may grant a
stalking protective order to “bring about the cessation of
conduct constituting stalking.” O.C.G.A. § 16-5-94(d).
Issuance of a stalking order thus requires the court to form
a conclusion about the likelihood of stalking in the future,
not just the occurrence of stalking in the past.
B.
Reasonable fear: A finding of stalking requires a finding
that the respondent has contacted, followed, or placed
under surveillance without the consent of the other person
for the purpose of harassing and intimidating the other
person, and that the petitioner’s fear for their safety or the
safety of their family is “reasonable.” O.C.G.A. § 16-590(a). Even though the statute mandates proof of fear,
evidence of the petitioner’s fear may also tend to prove the
likelihood that stalking will recur. In Pilcher v. Stribling,

1:11

282 Ga. 166 (2007) the Georgia Supreme Court ruled that
the petitioner must establish the elements of the stalking by
a preponderance of the evidence. Id. at 167. The Stalking
Protective Order had been granted for stalking at work.
The victims alleged verbal abuse toward them by the fire
chief and physical assaults directed toward the victims by
the fire chief during basketball games that were conducted
as part of their required physical training. The Supreme
Court ruled that the defendant’s conduct did not fall within
the statutory definition of stalking as they were not
sufficient to create a reasonable fear for their safety. Id. at
168.
C.
It is important to note that victims may deny they are afraid
as a way of coping with the danger and lack of control they
experience. (
D.Herman, 1992) A court might consider questioning the victim
not only directly about their sense of fear, but also
indirectly. For example, the court might inquire whether
the petitioner believes that the respondent is capable of
hurting the petitioner or the petitioner’s family. (Hunter,
2002)
E.
It is also important to note that fear can be present even
when there has been no recent act of violence. Lewis v.
Lewis, 728 S.E.2d 741 (2012). In Lewis, the petitioner
explained that “just considering the fact that I know him
and his history and I know the looks on his face or the—his
demeanor.... And I know when I feel threatened. And I felt
threatened at that time.” The Court held that there need not
be any reasonably recent act of violence to establish a fear
of future violence.
1.4

Employer Protective Orders (O.C.G.A. § 34-1-7)
1.4.1 Domestic violence greatly impacts the workplace. Ninety-six (96)
percent of employed women who suffer abuse report that their
work performance is hurt as a result of the family violence (Bureau
of Labor Statistics, 1999). Homicide is the leading cause of death
on-the-job for women and domestic violence accounts for 16% of
female victims of job-related homicides (U.S. Dept. of Labor,
2004). The Centers for Disease Control and Prevention (2003)
states the costs of intimate partner rape, physical assault and
stalking exceeds $5.8 billion each year, nearly $4.1 billion of
which is for direct medical and mental health care services.
Moreover, of the 4 million workplace crime incidents committed
against females from 1993 through 1999, only 40 percent were
reported to the police (Duhart, 2001). Employers may be the only
help for abused parties who are too frightened to claim their own
rights in court.

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1.4.2

1.4.3

1.4.4

To issue an employer protective order, a court must find that:
A.
an employer-employee relationship exists between
employer and the alleged victim (See Section 1.4.3); and
B.
the respondent has committed violence or the threat of
violence against the employee at the employee’s workplace
(See Section 1.4.4)
C.
Unlike family violence and stalking protective orders, the
statute does not explicitly require a finding that violence or
threats of violence may occur in the future. See O.C.G.A.
§ 34-1-7(e). Note also that the procedural and evidentiary
requirements for employer protective orders are stricter in
many details than those for family violence and stalking
orders. (See Section 2.6.1 below).
Employer-employee relationship
A.
Only employers may request an employer protective order,
and only to protect an employee. O.C.G.A. § 34-1-7 (b).
B.
The term “employer” applies to “any person or entity that
employs one or more employees.” O.C.G.A. § 34-1-7
(a)(3).
C.
The term includes the State of Georgia “and its political
subdivisions and instrumentalities.”
Violence or threats of violence:
A.
Under O.C.G.A. § 34-1-7 (b), the employer must prove
that the employee:
1.
“has suffered
2.
unlawful violence or
3.
a credible threat of violence
4.
from any individual,
5.
which can reasonably be construed to have been
carried out at the employee’s workplace.”
B.
“unlawful violence”: under O.C.G.A. § 34-1-7(a)(4),
these terms include:
1.
assault, both simple and aggravated, O.C.G.A. §§
16-5-20, -21;
2.
battery, including “simple battery”, “battery”, and
“aggravated battery”, O.C.G.A. §§ 16-5-23, 23.1,
24; or
3.
stalking, including “aggravated stalking”, O.C.G.A.
§§ 16-5-90, -91.
4.
“Unlawful violence” does not include “lawful acts
of self-defense or defense of others.”
C.
“credible threat of violence”: under O.C.G.A. § 34-17(a)(2), these terms include either a “knowing and willful”
statement or a “course of conduct”, which:

1:13

“would cause a reasonable person to believe that
he or she is under threat of death or serious bodily
injury”; and
2.
the respondent intends to cause “a person to believe
that he or she is under threat of death or serious
bodily injury”; and
3.
“actually causes” the person to believe the threat;
and
4.
“serves no legitimate purpose.”
D.
Course of conduct: The statute makes clear that “course
of conduct” means more than one act; instead, it means “a
pattern of conduct composed of a series of acts over a
period of time, however short, evidencing a continuity of
purpose . . .” O.C.G.A. § 34-1-7(a). Behaviors which
might evidence a “continuity of purpose” include:
following or stalking to or from the workplace, entering the
workplace, following during work hours, telephone calls or
correspondence, including both mail, fax, and e-mail.
O.C.G.A. § 34-1-7(a)(1).
Constitutionally protected conduct: In ruling on an employer
protective order, a court may not restrain “speech or other
activities which are protected by the Constitution of this State or
the United States.” O.C.G.A. § 34-1-7(b).
1.

1.4.5

1.5

Constitutional Considerations
1.5.1 The Georgia Supreme Court has held that the definitions of
stalking in the misdemeanor stalking statutes were not
unconstitutionally vague or overbroad, in a case arising from a
criminal conviction for stalking, Johnson v. State, 264 Ga. 590,
449 S.E.2d 94 (1994), Fly v. State, 229 Ga. App. 374 (1997),
Collins v. Bazan, 256 Ga. App. 164 (2002).
1.5.2 No Georgia case has ruled on the constitutionality of the civil
protection statutes, whether on vagueness or other grounds. Other
state and federal courts have reviewed comparable civil statutes
under federal constitutional standards, and have consistently
upheld them. These courts have held that:
A.
Civil domestic violence statutes are entitled to a
presumption of constitutionality, Johnson v. Cegielski,
393 N.W.2d 547 (Wis. Ct. App. 1986) (per curiam).
B.
The ex parte provisions of the civil statute do not violate
federal due process standards, Crowley v. Lilly, 2003 WL
21040256 (Ky.App., 2003)(unpublished opinion), PetersRiemers v. Riemers, 624 N.W.2d 83 (N.D. 2001), Blazel v.
Bradley, 698 F. Supp. 756 (W.D. Wisconsin 1988),
Kampf v. Kampf, 603 N.W.2d 295, 299 (Mich. Ct. App.
1999), State ex rel. Williams v. Marsh, 626 S.W. 2d 223,
232 (Mo. 1982), Marquette v. Marquette, 686 P.2d 990,

1:14

C.

D.

1.6

996 (Okla. Ct. App. 1984), Scramek v. Bohren, 429
N.W.2d 501, 505-506 (Wis. Ct. App. 1988), Sanders v.
Shepard, 541 N.E.2d 1150, 1155 (Ill. Ct. App. 1989),
Nollet v. Justices of the Trial Court, 83 F. Supp. 2d 204 (D.
Mass. 2000), Willmon v. Daniel, 2007 U.S. Dist. LEXIS
11538 (N.D. Tex. 2007), Moore v. Moore, 657 S.E.2d 743,
749 (S.C. 2008). The prevailing federal test for procedural
due process claims appears in Mathews v. Eldridge, 424
U.S. 319 (1976).
The language of the relevant civil statutes is not
unconstitutionally vague or overbroad, State v. Kidder,
843 A.2d 312 (N.H., 2004), Delgado v. Souders, 334 Or.
122, 46 P.3d 729 (2002), Kirkley v. Dudra, 996 WL
33360281 (Mich.App. 1996)(unpublished opinion),
Scramek v. Bohren, 429 N.W.2d 501, 505-506 (Wis. Ct.
App. 1988), Gilbert v. State, 765 P.2d 1208 (Okla. Crim.
App. 1988), Kreitz v. Kreitz, 750 S.W.2d 681 (Mo. Ct.
App. 1988), State v. Tripp, 795 P.2d 280 (Haw. 1990),
People v. Whitfield, 498 N.E.2d 262, 267 (Ill. App. Ct.
1986), State v. Sarlund, 407 N.W.2d 544 (Wis. 1987),
People v. Stuart, 100 N.Y.2d 412 (2003). Only one court
has declared a stalking statute unconstitutionally vague,
Commonwealth v. Kwiatkowski, 418 Mass. 543, 637
N.E.2d 854 (1994), a decision later superseded by a
constitutionally valid stalking statute, Commonwealth v.
Alphas, 430 Mass. 8, 12, 712 N.E.2d 575, 580 (1999).
Civil domestic violence statutes do not violate
constitutional protections for free speech, LaFaro v.
Cahill, 203 Ariz. 482, 489 , 56 P.3d 56, 62 (Ariz. App.,
2002), Scramek v. Bohren, 429 N.W.2d 501, 505-506
(Wis. Ct. App. 1988), People v. Blackwood, 476 N.E.2d
742 (Ill. App. Ct. 1985), Gilbert v. State, 765 P.2d 1208,
1210 (Okla. Crim. App. 1988), Lampley v. State, 2005
Alas. App. LEXIS 22 (Alaska Ct. App. 2005), or freedom
of travel, Delgado v. Souders, 334 Or. 122, 46 P.3d 729
(2002).

Divorce Action Restraining Orders
1.6.1 Restraining orders entered in divorce actions under the general
equitable powers of the court do not have the statutory
enforcement mechanisms associated with the Family Violence Act
(FVA) temporary protective orders(TPO). They may not be as
dangerous for victims as mutual temporary protective orders under
the FVA, nor are they as effective.
Divorce action restraining orders are not entered onto the Family
Violence Registry and are not enforceable through criminal

1:15

1.6.2

1:16

stalking procedures. Law enforcement are reluctant to enforce
these civil orders and they may not be entitled to full faith and
credit enforcement in other states. Moreover, restraining orders in
divorce actions do not invoke the firearms restrictions under
federal law.
Mutual or standing mutual restraining orders can be entered in
divorce actions against both parties without any particular
procedural requirements. The Family Violence Act requires that a
mutual order in a family violence act case must be requested 3
business days prior to the hearing and be based on written claims
of specific acts of violence. O.C.G.A. 19-13-4(a). Where family
violence is present between spouses, a FVA protective order claim
should be separately pleaded and proved. A FVA TPO will
provide more protection for the victim than a restraining order in a
divorce.

2

CHAPTER 2 – JURISDICTION AND PROCEDURE

2

JURISDICTION AND PROCEDURE

2.1

Jurisdiction & Venue
2.1.1 Overview: The three violence protection statutes have identical
provisions on jurisdiction and venue.
A.
Jurisdiction for stalking protective orders is the same as for family
violence protective orders. O.C.G.A. § 16-5-94 (b), citing
O.C.G.A. § 19-13-2.
B.
Jurisdiction for employer protective orders is the same as for
family violence protective orders. O.C.G.A. § 34-1-7 (c) (using
language identical to that contained in O.C.G.A. § 19-13-2.)
2.1.2 Subject matter jurisdiction: The superior courts have subject matter
jurisdiction over family violence protective orders and stalking protective
orders. O.C.G.A. §§ 19-13-2, 16-5-94(b), 34-1-7(c).
2.1.3 Personal Jurisdiction: In Anderson v. Deas, 279 Ga. App. 892, 632 S.E.
2d 682(2006), the Court of Appeals held that if the respondent is a nonresident Georgia courts do not have jurisdiction unless the act met the
requirements of O.C.G.A. § 9-10-91(2)or(3). In Deas the respondent had
placed harassing phone calls from another state to the petitioner in
Georgia but lacked the requirements of paragaphs 2 or 3 of the long arm
statute.
2.1.4 Venue: Venue depends on the residency of the respondent. Residency
exists where the respondent is domiciled, O.C.G.A. § 19-2-1; DavisRedding v. Redding, 246 Ga. App. 792, 793, 542 S.E.2d 197, 198 (2000).
A.
Resident respondent: The superior court of the county where the
respondent resides normally has jurisdiction. Id, § 19-13-2(a).
Where the respondent resides in two different Georgia counties,
venue may lie in either county. For example, venue exists in two
counties where “the respondent has left the family home but has
not avowed an intention to remain in his new location.” DavisRedding v. Redding, 246 Ga. App. at 794.
B.
Non-resident respondent: for non-resident respondents, venue
may be proper in two alternate counties:
1.
the county where the petitioner resides; or
2.
the county “where an act involving family violence
occurred”. For venue in such a county, the relevant acts
must satisfy the Georgia’s long-arm statute with respect to
“tortious acts or omissions” or “tortious injury”. O.C.G.A.
§ 19-13-2(b), citing O.C.G.A. § 9-10-91(2) and (3).
3.
In cases involving cyberstalking, when communications
come from out of State, temporary protective orders are
proper when filed in the state from which the respondent
sent the communications. Huggins v. Boyd, 2010 Fulton
County D. Rep. 2141 (2010).
2:1

C.

2.1.5

2.2

Waiver of venue: If the respondent waives the defense of
improper venue, or fails to contest venue, a superior court lacks the
authority to dismiss a petition sua sponte for improper venue.
Davis-Redding v. Redding, 246 Ga. App. at 794 -795.
D.
Judges sitting by designation: A superior court may designate
the judge of another court to serve as a superior court judge with
respect to family violence act petitions without destroying the
superior court’s subject matter jurisdiction. Giles v. State, 257 Ga.
App. 65, 66, 570 S.E.2d 375, 377 (2002) (magistrate court judge
designated to sit as a superior court judge).
Military Jurisdiction: No Georgia case has ruled on extending a superior
court’s jurisdiction over violence protection petitions to military bases.
Modern United States Supreme Court cases permit states to exercise
“power over the federal area within its boundaries, so long as there is no
interference with the jurisdiction asserted by the Federal Government.”
Howard v. Commissioners of the Sinking Fund of Louisville, 344 U.S. 624,
627, 73 S.Ct. 465, 467, 97 L.Ed. 617 (1953). Courts in at least two other
states have held that this precedent permits a trial court both to hear
petitions from petitioners who reside on military bases, and to apply
violence protection orders to respondents both on and off military bases.
Cobb v. Cobb, 545 N.E.2d 1161 (Mass. 1989); Tammy S. v. Albert S., 95
Misc.2d 892, 893, 408 N.Y.S.2d 716, 717 (1973). The latter court also
held that the order could be enforced on the military base by presenting
the order to military authorities, who could then enforce the order.

Procedure Generally
2.2.1 Application of the Civil Practice Act: Georgia law does not specify
which procedural rules apply to protective order proceedings.
A.
On the one hand, the Civil Practice Act states that, “this chapter
governs the procedure in all courts of record of this state in all
actions of a civil nature.” O.C.G.A. § 9-11-1.
B.
On the other hand, an unofficial opinion of the Georgia Attorney
General states that, “the Family Violence Act is a special statutory
proceeding rather than a regular civil action.” 1995 Op. Atty.
Gen. No. U95-7. According to this opinion, since “abbreviated
procedures are specifically outlined in the Family Violence Act . . .
the CPA would not apply.” Id. This opinion also states that, even
where the Family Violence Act does not specify a procedure, the
Civil Practice Act would not apply, “because the latter is not a civil
action in the ordinary meaning of the term.” Id. The opinion does
assert that “if . . . CPA . . . provisions were used, they would be
sufficient.” Id.
C.
The Georgia Court of Appeals reached the same conclusion in
dicta, relying on this opinion. Carroll v. State, 224 Ga. App. 543,
546, 481 S.E.2d 562, 564 (1997). See also O.C.G.A. § 9-11-81
(applying the Civil Practice Act to “special statutory
proceedings.”)
D.
Thus, where a protective order statute creates a process that
diverges from the Civil Practice Act, it would appear that the
2:2

2.2.2

2.2.3

2.3

Petitions
2.3.1

2.3.2

protective order statute would control. Where a protective order
statute is silent on a particular point of procedure that the Civil
Practice Act specifies, the CPA may still not control. However, in
such a case, compliance with the Civil Practice Act would seem to
satisfy the protective order statutes.
Superior Court Rules: The Uniform Superior Court rules governing
“domestic relations” actions do govern petitions under the Family
Violence Act. Uniform Superior Court Rule 24.1. These rules do not
explicitly include either stalking or employer protective orders.
Similarity of Protective Order Procedures:
A.
The stalking protective order statute incorporates by reference
certain procedural and substantive provisions of the Family
Violence Act. O.C.G.A. § 16-5-94(e) cross-referencing O.C.G.A.
§§ 19-13-3(c) & (d), 19-13-4(b),(c) & (d), and 19-13-5. These
provisions include those:
1.
for scheduling hearings within 30 days of ex parte orders.
2.
defining the roles of lay advocates and clerks in preparing
petitions.
3.
requiring issuance of final orders to sheriffs, and retention
of orders by sheriffs.
4.
governing the duration of final orders.
5.
establishing the effectiveness of final orders throughout
Georgia.
6.
specifying the supplemental nature of remedies under each
statute.
B.
The employer protective order statute contains its own procedures,
which vary in certain details from those for family violence and
stalking protective orders. This section addresses those differences
separately below.
A person seeking either a family violence protective order or a stalking
protective order must file a petition. O.C.G.A. §§ 19-13-3(a), 16-5-94(a).
The petition must be verified. Id, §§ 19-13-3(b), 16-5-94(c); see also
O.C.G.A. §§ 9-11-11 (verified pleadings), 9-10-110 (verified petitions for
equitable relief.)
Financial affidavits: In family violence protective order cases,
petitioners may seek various remedies involving the payment of money,
including child support, spousal support, and attorneys' fees, O.C.G.A. §
19-13-4(a)(6), (7), (10).
A.

In protective order actions filed under O.C.G.A. § 19-13-1 et seq.
and in other emergency actions, the affidavit may be filed and
served on or before the date of the hearing or at such other time as
the court orders, and shall not be required at the time of filing of
the action. Uniform Superior Court Rule 24.2.
2:3

B.

2.3.3

2.3.4

2.3.5

2.4

The court has the discretion to treat failure to file an affidavit as
grounds for contempt or to continue the hearing until the affidavit
has been filed.
Assistance from lay advocates and court clerks: The superior court
may designate staff members of family violence shelters or social services
agencies to “explain to all victims not represented by counsel the
procedures for filling out and filing all forms and pleadings necessary for
the presentation of their petition.” O.C.G.A. § 19-13-3(d). Clerks are not
required to provide assistance in completing forms or presenting cases in
family violence cases. Id. Any assistance provided by lay advocates must
be without cost to petitioners. Id. Assistance by lay advocates within this
provision does not constitute the unauthorized practice of law. Id.
Fees:
A.
The superior court may not assess fees “in connection with the
filing, issuance, registration, or service of a protection order . . . to
protect a victim of domestic violence, stalking, or sexual assault.”
O.C.G.A. § 15-6-77(e)(4). The same statutory section bars fees
for petitions for prosecution orders of protection, and fees for the
filing of criminal charges by “an alleged victim of any domestic
violence offense . . .” Id, § 15-6-77(I)(3) and § 15-10-82.
Forms: The clerk of each superior court may provide petitioners (or lay
advocates) with the forms necessary for both family violence and stalking
petitions. O.C.G.A. §§ 19-13-3(d), 16-5-94(e).

Ex Parte Orders
2.4.1 Review and Screening of Petitions: Nothing in either the statute or the
court rules describes how a superior court should review and screen
petitions for ex parte relief. Judges thus have discretion to decide on
granting ex parte relief using only the written allegations of the petition.
Alternately, a court may also decide on ex parte relief after review of the
petition and direct contact with the petitioner. A court may delegate
screening to a court employee, often a law or court clerk, to screen
petitions. (See Appendix B - Assessing for Lethality, Appendix C Screening for Domestic Violence and Appendix D - Checklist for Ex Parte
Applicants)
2.4.2 Contact with Respondent: The statute does not explicitly specify
whether the court may have contact with the respondent before issuing an
ex parte order. However, the term “ex parte” necessarily implies issuance
of an order “for the benefit of one party only, and without notice to, or
contestation by, any person adversely interested.” Black’s Law Dictionary
(6th ed. 1990)(definition of ex parte), cited in Cagle v. Davis, 236 Ga.
App. 657, 661-662, 513 S.E.2d 16, 21 (1999). The statute’s use of the
term “ex parte” appears to indicate a legislative intent that a court not
contact the respondent prior to issuing an ex parte order under the statute.
This legislative intent likely arises from the fact that women are more
likely to be victims of homicide when they are estranged from their
abusive partners than when they live with them. The risk of homicide is
higher in the first two months after separation (Wilson and Daly,
1993)(Campbell, 2003). Contact with the respondent prior to service
2:4

could in many cases endanger the petitioner. The statutes state that the
court “may issue such temporary relief ex parte;” neither authorizes the
issuance of interim relief after contact with the respondent. O.C.G.A. §§
19-13-3(b), 16-5-94(c).
2.4.3
Issuing Ex Parte Orders:
A.
A person seeking an ex parte family violence or stalking order
must allege “specific facts” indicating the occurrence of family
violence or stalking. O.C.G.A. §§ 19-13-3(b), 16-5-94(c).
B.
The court may grant ex parte relief if it finds that “probable cause”
exists that family violence or stalking “has occurred in the past and
may occur in the future.” Id.
1.
The court may grant whatever temporary relief it “deems
necessary to protect the petitioner or a minor of the
household.” Id.
2.
Upon issuance of the ex parte order, the court must
immediately provide the petitioner with a copy. Id.
C.
The statute specifies a range of possible remedies that the court
might order, which will be more fully described later. O.C.G.A.
§§ 19-13-4(a) (family violence), 16-5-94(d) (stalking). In issuing
ex parte orders, the court should consider:
1.
protection for the petitioner and the petitioner’s children,
including cessation of violent behavior by the respondent,
and prevention of all efforts by the respondent to contact or
come near the petitioner and the petitioner’s children.
2.
provision for temporary custody of the parties’ children;
3.
possession of a residence.
4.
respondent’s possible use of firearms.
D.
Repeat Petitioners:
1.
A court might sometimes receive frequent petitions from
the same petitioner, each petition followed by a withdrawal
or dismissal. Such a practice can create understandable
concern about the use of court resources. At the same time,
these repeat filings may reflect a compelling aspect of
intimate violence or stalking, that of the abuser's ability to
use professions of love, promises to change and appeals for
mercy so that in the eyes of the abused party the balance of
power appears to change in their favor. This seeming
power shift does not last for long (Herman, 1992).
2.
Neither the family violence nor the protective order statutes
permit a court to dismiss a petition solely because the
petitioner has filed and dismissed petitions on multiple
prior occasions. Instead, the statute contemplates that the
court assess probable cause in light of the “specific facts”
of the current petition. O.C.G.A. §§ 19-13-3(b), 16-594(c).
2:5

3.

E.

F.

G.

2:6

Given the nature of family violence or stalking as a social
and interpersonal phenomenon, prior repetitive filings may
indicate nothing, or may well indicate support for
“probable cause” in the case at hand.
4.
A court concerned with a petitioner’s practice of repetitive
filing might consider a referral to a family violence shelter
or social services agency for assistance and counseling in
the petitioner’s efforts to separate from an alleged abuser.
(See Resources).
Denial of Ex Parte Relief / Continuation of Petition: The court
may order ex parte relief. Whether or not the court grants a
petitioner’s claim for ex parte relief, the statute states that “a
hearing shall be held” within a certain time period after “the filing
of the petition.” O.C.G.A. §§ 19-13-3(c) (family violence) crossreferenced by O.C.G.A. § 16-5-94(d) (stalking). The statute sets
the date of the hearing with reference to the filing of the petition,
not the decision on ex parte relief. Thus, after denying an ex parte
request, the court must still schedule the final hearing if petitioner
requests it, at which the petitioner “must prove the allegations of
the petition.” Id. The hearing requires notice to the respondent
and the opportunity for the respondent to contest. The court may
dismiss the petition either upon failure of the petitioner’s proof or
upon petitioner’s dismissal of the petition. If a hearing is scheduled
when ex parte relief has been denied, care should be taken to link
petitioner to an advocate from the local domestic violence shelter
or prosecutor’s office to assist with safety planning.
In most cases the ex parte hearing occurs prior to the filing of the
petition, therefore an order (Rule Nisi) for the hearing should be
entered and filed with the petition even if ex parte relief is denied.
If the petitioner does not wish to pursue the case to the final
hearing, the court should enter an order denying ex parte relief and
dismissing the petition without prejudice at petitioner’s request. If
petitioner wishes to pursue the case to final hearing but the court
does not want to grant ex parte relief then the court should enter an
order denying ex parte relief but setting a hearing within thirty (30)
days as required by the statute.
Forms Attached:
1.
Form A: Family violence order denying ex parte relief/
status of petition
2.
Form B: Stalking order denying ex parte relief/status of
petition

IN THE SUPERIOR COURT OF__________ COUNTY
STATE OF GEORGIA
____________________,

:
Petitioner,

vs.
____________________,

:
:
:

:
Respondent.

:
:
:

Civil Action File No.:

________________
FAMILY VIOLENCE ORDER DENYING EX PARTE RELIEF/
STATUS OF PETITION
The petitioner having prayed, pursuant to O.C.G.A. § 19-13-3, that a
Protective Order be issued; and alleged that Respondent has committed acts of
Family Violence and that Petitioner is in reasonable fear of the Petitioner’s safety
and the safety of Petitioner’s children. After having heard Ex Parte the
Petitioner’s evidence and reviewed the petition, the Court did not find probable
cause that family violence occurred in the past and may occur in the future, IT IS
HEREBY ORDERED AND ADJUDGED:
1.
The Court denies Petitioner’s Ex Parte request for a Protective Order.
2.
Pursuant to O.C.G.A. § 19-13-3(c), Petitioner has the right to a full and
final hearing on this petition within ten days of the filing of the petition under this
article or as soon as practical thereafter, but in no case later than 30 days after the
filing of the petition. A hearing shall be held at which the petitioner must prove
the allegations of the petition by a preponderance of the evidence as in other civil
cases.
3.
Petitioner has been advised of his/her right to a full and final hearing
pursuant to O.C.G.A. § 19-13-3(c) and the:
[ ]

Petitioner does not want to continue to a full and final hearing on their Petition
for a Protective Order; therefore, this Petition is dismissed without prejudice.

[ ]

Petitioner does want to continue to a full and final hearing on their Petition for a
Protective Order; therefore, this Petition is scheduled for a hearing as follows:
2:7

That the Respondent appear before
Judge_______________________, on the ______day of
____________at _______ __.m. in room _______of the
_______County Courthouse at
_____________________________ to show cause why the
requests of the Petitioner should not be granted.
SO ORDERED THIS _____ DAY OF ________________________,
20____.

Magistrate, Pro Hac Vice, Sitting by
Designation
Judge,
In the Superior Court of _______
Fulton County

2:8

IN THE SUPERIOR COURT OF

COUNTY

STATE OF GEORGIA
____________________,

:
Petitioner,

vs.
____________________,

:
:
:

:
Respondent.

:
:
:

Civil Action File No.:

________________
STALKING ORDER DENYING EX PARTE RELIEF/
STATUS OF PETITION
The petitioner having prayed, pursuant to O.C.G.A. § 16-5-94, that a
Protective Order be issued; and alleged that Respondent has committed acts of
Stalking and that Petitioner is in reasonable fear of the Petitioner’s safety and the
safety of Petitioner’s children. After having heard Ex Parte the Petitioner’s
evidence and reviewed the petition, the Court did not find probable cause that
stalking occurred in the past and may occur in the future, IT IS HEREBY
ORDERED AND ADJUDGED:
1.
The Court denies Petitioner’s Ex Parte request for a Protective Order.
2.
Pursuant to O.C.G.A. § 16-5-94 (e), cross referencing applicable
statue/provision O.C.G.A. § 19-13-3(c) Family Violence, Petitioner has the right
to a full and final hearing on this petition within ten days of the filing of the
petition under this article or as soon as practical thereafter, but in no case later
than 30 days after the filing of the petition. A hearing shall be held at which the
petitioner must prove the allegations of the petition by a preponderance of the
evidence as in other civil cases.
3.
Petitioner has been advised of his/her right to a full and final hearing
pursuant to O.C.G.A. § 16-5-94 (e) and the:
[ ]

Petitioner does not want to continue to a full and final hearing on their Petition
for a Protective Order; therefore, this Petition is dismissed without prejudice.

[ ]

Petitioner does want to continue to a full and final hearing on their Petition for a
Protective Order; therefore, this Petition is scheduled for a hearing as follows:
2:9

That the Respondent appear before
Judge_______________________, on the ______day of
____________at _______ __.m. in room _______of the
________County Courthouse at
_____________________________ to show cause why the
requests of the Petitioner should not be granted.
SO ORDERED THIS _____ DAY OF ________________________,
20____.

Magistrate, Pro Hac Vice,
Sitting by Designation
Judge,
In the Superior Court of _______
Fulton County

2:10

2.5

Pre-Hearing Process
2.5.1 The family violence and stalking protective order statutes leave
unresolved the various possibilities for pre-hearing procedure. The short
time frames within which the protective orders hearing must occur
naturally limit the extent of pre-hearing activity. The family violence
statute does specify rules governing counter petitions for protection.
Beyond, the statutes do not specify how courts should handle motions,
discovery, or consolidation with other claims.
2.5.2 Scheduling the Hearing: The court must set a hearing on a petition
within 10 and no longer than 30 days after the filing of a petition.
O.C.G.A. § 19-13-3(c), cross-referenced by O.C.G.A. § 16-5-94(d)
(stalking).
A.
If the court cannot set a hearing date within these time periods in
the original county of filing, a court must schedule and hear the
case in “any other county of that circuit.” Id. Failure to hold the
hearing within the stated time periods results in dismissal of the
petition, “unless the parties otherwise agree.” Id. The Civil
Practice Act’s provisions for calculating dates and times can
apply. O.C.G.A. § 9-11-6.
B.
The 30 day time period for family violence and stalking hearings
can place great strain on a court’s docket, mandating that the court
hear these petitions in advance of other pending cases. Some of
this docket pressure can be relieved by settlement.
C.
On occasion, a court may find that it lacks the time in its docket to
hear the case, even though it had scheduled the case within the
30-day period. As noted, the family violence and stalking statutes
permit the parties to agree to extend the time frame. O.C.G.A. §
19-13-3(c). A court may discuss the problem with the parties,
with a view to securing their consent to an extension. Lacking the
parties consent, the court must either hold the hearing or dismiss
the order. Dismissal of the petition where the petitioner has fully
prosecuted the complaint seems at odds with the policy, if not the
letter, of the protective order statutes.
D.
A solution to the time dilemma would allow a court to commence
the hearing, and take evidence, but to continue it to the earliest
possible later date when court time is available. Such a solution
can be justified on the language of the family violence and
stalking protective order statutes, which require that the hearing
“be held” within the 30-day time frame. O.C.G.A. § 19-13-3(c).
The court would need to extend the ex parte order to that date of
the later hearing. Such an approach seems consistent with the
statute’s dual concerns to protect the petitioner and to assure the
respondent an early hearing. It also seems to fall within the
court’s inherent authority to manage its own docket. See Duggan
v. Duggan-Schlitz, 246 Ga. App. 127, 128, 539 S.E.2d 840, 842
(2000) (approving the “commence and continue” approach where
2:11

2.5.3

2.5.4

2.5.5
2:12

the court could not complete hearing a motion to extend a sixmonth order within the original six month period.)
Service on the Respondent: After setting the hearing date, the petitioner
must ensure notice to the respondent of the petition, of the date of the
hearing and any ex parte order. O.C.G.A. §§ 9-11-4 (service of petition),
9-11-5 (service of papers after original complaint.) See also O.C.G.A. §
34-1-7(f) (requiring service of employer protective order petitions, ex
parte orders and notices of hearing on the respondent.). The Family
Violence statute does not specify personal service but if child support is
requested then there must be personal service.
A.
Failure to assure proper service on the respondent justifies
dismissal of the petition by the court. O.C.G.A. § 9-11-41(b). In
Loiten v. Loiten, 288 Ga. App. 638, 655 S.E.2d 265 (2007), the
out-of-state respondent was served with the ex-parte order but not
the petition. The trial judge directed that the respondent be served
when he left the court. The sheriff served the respondent with the
petition in the courthouse parking lot. The Court of Appeals held
that service of the petition on the defendant following a noticed
hearing at which he made a Motion to Dismiss for insufficient
notice and lack of service because he was not served with the
petition was insufficient and prohibited under Steelman v. Fowler,
234 Ga. 706, 707 (1), 217 SE2d 285 (1975).
B.
Dismissal in this case is without prejudice; the petitioner may refile
when service on the respondent becomes possible, but new acts
may be required. O.C.G.A. § 9-11-41. See also O.C.G.A. § 911-41(b) (involuntary dismissal for want of prosecution or failure
to comply with the Civil Practice Act.)
C.
Service of the ex parte order has a special practical urgency in
protective order cases. The respondent does not have legal notice
of the order, and law enforcement officials may not enforce it, until
respondent has been served.
D.
Since this is also the most dangerous period for the abused party
timely service becomes a life-saving issue (Campbell, 2003)
(Wilson & Daly, 1993).
Answers: Neither the family violence nor the stalking protective order
statutes require the defendant to file an answer to the petition. The
employer protective order statute permits such a response. O.C.G.A. §
34-1-7(e). The respondent may appear and contest the allegations of the
complaint on the merits without having filed a responsive pleading. Such
an approach seems justified by the statutes’ concerns for rapid resolution
of claims raised by ex parte relief. Such an approach modifies the Civil
Practice Act, which treats a party’s failure to file a responsive pleading as
waiver of entitlement to all later notices, including notice of the date and
time of hearing. O.C.G.A. § 9-11-5(a). In protective order cases, the
respondent should continue to receive notice of hearings and all other
motions prior to the date and time set for hearing.
Counter petitions: On occasion, respondents may request that the court
issue a restraining order against the petitioner, in addition to any relief that

2.5.6

2.5.7

the petitioner seeks. To obtain such a “mutual protective order” under the
Family Violence Act, the respondent must file a separate petition “as a
counter petition.” O.C.G.A. § 19-13-4(a). This counter petition must be
verified, and must independently satisfy the requirements for protection
against family violence, Id, citing O.C.G.A. §§ 19-3-3. The respondent
must file the counter petition “no later than three days, not including
Saturdays, Sundays, and legal holidays, prior to the hearing.” Id. Until
these requirements are satisfied “the court lacks the authority to issue or
approve mutual protective orders”. Id. In Williams v. Jones, 291 Ga.
App. 395, 662 S.E.2d 195 (2008) the Court of Appeals reversed portions
of a family violence protective order because the respondent had not filed
a verified counter petition. The trial court previously issued a family
violence protective order that restrained and enjoined both parties from
certain acts and ordered both to attend a batterer’s intervention program.
A.
There is considerable debate regarding the issuance of mutual
restraining orders. Zorza (1999) enumerates many unintended
consequences that are created by mutual orders that can endanger
and/or negatively impact all parties involved.
Motions: Either party may file motions addressed to the court prior to the
date set for hearing. O.C.G.A. § 9-11-7.
A.
The Uniform Superior Court rules provide that the party opposing
the motion may have up to 30 days to respond to the motion,
Uniform Superior Court Rule 6.2. So stated, this time frame seems
inconsistent with the 30 day time period required for protective
orders. However, the rule permits the court to order a different
time period for response. Id.
B.
A separate rule relating to emergency motions goes farther.
Uniform Superior Court Rule 6.7. It permits the assigned judge
“to waive the time requirement applicable for emergency motions”
and also to “grant an immediate hearing on any matter requiring
such expedited procedure.” Id. To justify this expedited process,
the motion must 1) be in writing, 2) show good cause, and 3) “set
forth in detail the necessity for such expedited procedure.” Id.
C.
Nothing in the Superior Court rules or the Civil Practice Act
prevents the court from scheduling any motions in protective order
cases at the same time as the hearing set for the merits. Moreover,
Superior Court rules permit the court to rule on a motion without
oral hearing. Uniform Superior Court Rule 6.3.
Discovery: The 30 day requirement for final hearings in protective order
cases severely limits the opportunity for effective discovery, at least
within the normal time frames of the relevant rules. The Superior Court
rules do permit a court to “shorten the time to utilize the court's
compulsory process to compel discovery.” Uniform Superior Court Rule
5.1 (stating that in the normal course, discovery should be completed
within 6 months). In family violence and stalking cases, the parties
themselves may extend the date of the hearing to avoid dismissal of the
2:13

2.5.8

2.5.9

2.6

Hearings
2.6.1

2:14

case. O.C.G.A. § 19-13-3(c). These provisions permit the court and the
parties to structure a discovery schedule consistent with the need for an
early hearing on the petition for protection. However, in the normal
course, the court can expect little if any discovery prior to a hearing on the
merits.
Consolidation: Before a hearing on the protective order, parties may also
file independent claims with which a family violence or stalking case
might be consolidated. These claims include divorce, legitimation, or
deprivation actions.
Dismissal: The petitioner can dismiss the petition before the hearing
occurs. O.C.G.A. § 9-11-41(a). If the respondent has filed a
counterclaim, the Civil Practice Act states that the counterclaim “shall not
be dismissed against the defendant’s objection unless the counterclaim can
remain pending for independent adjudication by the court.” O.C.G.A. §
9-11-41(a)(2). Since the Family Violence Act requires that a respondent’s
counterclaim satisfy the requirements for an initial petition, it seems likely
that such a counterclaim “can remain pending.” Thus, a petitioner’s
dismissal should not in the ordinary course lead to dismissal of
respondent’s counterclaim.
Evidence and Findings: The petitioner has the burden of proving the
elements necessary to justify an order providing further relief from abuse.
The elements required for different protective orders are covered in more
detail above. This section summarizes the basic elements:
A.
Family Violence Protective Order: under O.C.G.A. §§ 19-131, 19-13-3, the petitioner must prove that:
1.
the petitioner has a particular relationship to the
respondent; and
2.
the respondent has engaged in one or more particular types
of violence; and
3.
the petitioner needs protection against future violence by
the respondent.
4.
the burden of proof is preponderance of evidence.
B.
Stalking Protective Order: under O.C.G.A. §§ 16-5-90, 16-594, the petitioner must prove that:
1.
the respondent has stalked the petitioner, meaning that the
respondent:
(a)
has followed, placed under surveillance, or
contacted the petitioner;
(b)
at or about a place or places;
(c)
without the petitioner’s consent;
(d)
for the purpose of harassing and intimidating the
petitioner.
(e)
burden of proof is preponderance of evidence.
2.
the petitioner needs protection against future stalking by
the respondent.
C.
Employer Restraining Order: under O.C.G.A. § 34-1-7, the
employer must prove that:

1.

2.6.2
2.6.3

2.6.4

the employer has an employer-employee relationship with
the employee;
2.
the employee has suffered unlawful violence or a credible
threat of violence;
(a)
from the respondent,
(b)
at the employee’s workplace or in the course of the
employee’s work.
3.
the burden of proof is clear and convincing evidence.
In addition to these basic elements, the petitioner must also prove facts
sufficient to support the requested relief. (See Section 3.2 - Remedies).
Standard for Factual Review:
A.
Trial courts have broad discretion in finding facts in protective
order cases.
B.
The Court of Appeals has stated that “[C]ases such as this . . . turn
largely on questions of credibility and judgments as to the welfare
of the child. The trial court is in the best position to make
determinations on these issues, and we will not overrule its
judgment if there is any reasonable evidence to support it.” Baca
v. Baca, 256 Ga. App. 514, 568 S.E.2d 746 (2002) (affirming a
child custody determination in family violence case), Buchheit v.
Stinson, 260 Ga. App. 450, 579 S.E.2d 853 (2003) (reversing a
determination on the occurrence of family violence.) (See
Appendix J - Guardians Ad Litem In Family Violence Cases)
Burden of Proof:
A.
In family violence and stalking cases, the petitioner has the burden
of proving the allegations of the petition by a preponderance of the
evidence. O.C.G.A. § 19-13-3(c), O.C.G.A. § 16-5-94(e).
B.
In employer protective order cases, the employer has the burden of
proving the allegations of the petition by clear and convincing
evidence. O.C.G.A. § 34-1-7(e).

2.6.5
Witnesses: No rule limits the number of witnesses that a party may call in a
protective order case.
A.
Uniform Superior Court Rule 24.5 does limit the numbers of
witnesses that parties may present for “temporary hearings” in
“domestic relations actions.” Uniform Superior Court Rule
24.5(a), see also Uniform Superior Court Rule 24.1 (including
Family Violence Act petitions as “domestic relations actions.”)
B.
However, the Court of Appeals has stated on different facts that
these hearings produce “final orders, . . . nothing remains
pending.” Williams v. Stepler, 221 Ga. App. 338, 471 S.E.2d 284
(1996) (holding that a family violence order constitutes a final
order, not requiring interlocutory appeal.)
2.6.6 Absent Parties:
A.
If the petitioner fails to attend the hearing, a court may (and on
request must) dismiss the case for failure to prove the allegations
2:15

of the petition. O.C.G.A. § 19-13-3(c), see also O.C.G.A. § 9-541(b) (involuntary dismissal for want of prosecution).
B.
If the respondent fails to attend the hearing, the statute still requires
the petitioner to prove the allegations of the pleading. O.C.G.A. §
19-13-3(c), therefore there is no default.
2.6.7 Interpreters: The court shall provide an interpreter for either a petitioner
and or respondent in a temporary protective order hearing, “when
necessary for the hearing on the petition.” O.C.G.A. § 15-6-77(e)(4).
The court may arrange for payment of the “reasonable cost” of an
interpreter out of the local victim assistance funds. O.C.G.A. § 15-6-130
et seq.
A.
Tapestri, Inc., a state organization that provides national training on issues
specific to battered refugee and
immigrant women, advises that it is dangerous to use victim’s companions
or children as interpreters. They recommend developing a list of
contract interpreters that are well-trained in domestic violence.
(See Appendix H - Immigrants and Refugees)
2.7

Employer Protective Order Process
2.7.1 The procedures for employer protective orders in general parallel those for
family violence and stalking protective orders. An employer must file a
petition, and may obtain an ex parte remedy. The court must hold a
hearing within a limited time, and may issue a restraining order of longer
duration upon proof of the allegations in the petition.
2.7.2 However, employer restraining order proceedings also vary in significant
respects from proceedings for family violence or stalking protective
orders:
A.
Affidavit required for ex parte relief: To obtain a “temporary
restraining order”, in addition to filing a petition, the employer
must file an affidavit. O.C.G.A. § 34-1-7(d). The affidavit must
address the following facts:
1.
the employee has suffered “unlawful violence or a credible
threat of violence”;
2.
“great or irreparable harm shall result” to the employee
without relief; and
3.
the employer has made “a reasonable investigation into the
underlying facts.” Id. Compare O.C.G.A. §§ 19-13-3(c),
16-5-94 ( in family violence or stalking petitions,
requirement of a “verified petition” alleging “specific
facts”.)
B.
Standard for granting ex parte relief: Before granting a
temporary restraining order in an employer petition, the court must
find that the affidavit contains “reasonable proof” of its allegations.
O.C.G.A. § 34-1-7(d). Compare O.C.G.A. §§ 19-13-3(c), 16-594 ( in family violence or stalking petitions, requirement of
“probable cause.”)
C.
Duration of ex parte relief: A temporary restraining order in an
employer protective order case can last “for a period not to exceed
15 days, unless otherwise modified or terminated by the court.”
2:16

D.

E.

F.

G.

O.C.G.A. § 34-1-7(d). Note that the court must schedule a
hearing “no later than 30 days after the filing of the petition”, Id §
34-1-7(e). This suggests that, where the court grants a temporary
restraining order, but sets a hearing for a date more than 15 days
later, the employer may need to request the court to renew or
modify the restraining order before the hearing. Compare
O.C.G.A. §§ 19-13-3, 19-13-4, 16-5-94 (in family violence or
stalking petitions, ex parte order lasts until the hearing.). This is
important information for employers since a recent study indicated
that two-week orders are less effective than no order at all (Holt,
2002).
Answer and counter-claim permitted: “the respondent may file
a response which explains, excuses, justifies, or denies” the
allegations in the petition. The respondent may also file “a crosscomplaint” requesting an employer restraining order. O.C.G.A. §
34-1-7(e). Compare O.C.G.A. §§ 19-13-3(c), 16-5-94 (in family
violence or stalking petitions, answer by respondent not required;
counter-claim required for mutual protective order.)
Independent inquiry by court: At a hearing on an employer
protective order petition, the court shall hear “any testimony that is
relevant.” The court may also “make an independent inquiry.”
O.C.G.A. § 34-1-7(e). Compare O.C.G.A. §§ 19-13-3(c), 16-594 (in family violence or stalking petitions, no provision
authorizing independent inquiry.)
Burden of proof: The employer must prove the allegations of the
petition “by clear and convincing evidence.” O.C.G.A. § 34-17(e). Compare O.C.G.A. §§ 19-13-3(c), 16-5-94 (in family
violence or stalking petitions, requirement of proof by a
preponderance of the evidence.)
Duration of order: An employer protective order may have
duration of up to three years. O.C.G.A. § 34-1-7(e), and may be
renewed by motion of petitioner within three months before the
expiration of the order. Compare O.C.G.A. §§ 19-13-4(c), 16-594 (in family violence or stalking petitions, duration of up to one
year but may be extended to three years or permanently.)

2:17

3

CHAPTER 3 – REMEDIES, SETTLEMENTS AND ORDERS

3

REMEDIES, SETTLEMENTS AND ORDERS

3.1

Overview
3.1.1
3.1.2
3.1.3

3.1.4

3.2

The three protective order statutes offer various remedies. (See
Section 3.2 below, Remedies).
All three permit parties to provide for remedies through
negotiation, (See Section 3.3 below, Settlements).
Special considerations arise with respect to the mediation of cases
involving family violence. (See Section 3.4 below and Appendix
K - Mediation).
Finally, protective orders have special features with respect to
finality, service, duration, extension and enforcement. (See
Section 3.5 below, Orders).

Remedies
3.2.1 Family violence protective orders offer the widest range of
potential remedies. This section first addresses family violence
protective order remedies in four categories: protection; children;
property and money; and treatment. The section then discusses the
remedies available for stalking protective orders and for employer
protective orders. It concludes with a discussion of the court’s
equitable powers to fashion additional remedies.
3.2.2 Protection:
A.
Restraining orders: Family violence orders may:
1.
Direct the respondents to “refrain from” the acts,
which led to the court’s finding of family violence.
O.C.G.A. § 19-13-4(a)(1).
2.
“Order the respondent to refrain from harassing or
interfering with the victim.” O.C.G.A. § 19-134(a)(9).
3.
A superior court judge can and should apply the
general language of these provisions in a variety of
more specific ways, with a view towards assuring
the safety of the petitioner and any children
involved. For example, under these provisions,
courts routinely award:
(a)
Stay-away orders: requiring the
respondent to stay a specified distance away
from the petitioner, or the petitioner’s
children, or the petitioner’s residence or
workplace.
(b)
No-contact orders: requiring the
respondent to have no contact with the
petitioner. These orders should be as
specific as possible for the intended purpose.
3:1

B.

3:2

Orders can and should specify those types of
contact that are of particular concern,
including phone contact, letters, e-mail. At
the same time, orders should make clear that
all contact is prohibited, even through
methods of communication not specifically
listed in the order.
(c)
Limited or
(d)structured contact orders: on occasion, the
parties might require contact for a limited
purpose, such as transportation or transfer of
children, or the exchange or pick up of
personal property. Protective orders should
prevent or at the outside minimize such
incidental contact. Where it must happen,
the circumstances of contact should be clear,
specific and carefully limited, and should
include provision for a third-party presence
during the contact.
(e)
Georgia law suggests that the court has the
authority to enter these orders. See
O.C.G.A. § 16-5-95. This section describes
the misdemeanor offense of violating a
family violence order. The section
specifically notes stay-away, no-contact, and
distance-limiting orders as enforceable
orders under the Family Violence Act. Id.
4.
A substantial body of literature indicates that, for
maximum effectiveness, protective orders must be
clear, unambiguous and specific. Respondents
require clear notice of the proscribed behavior; and
law enforcement agencies need clarity for those
occasions when enforcement becomes necessary.
Firearms: Many Superior Courts routinely include gun
provisions in family violence protective orders. The
Family Violence Act does not specifically mention such
provisions but allows the court to grant any protective order
to bring about the cessation of acts of family violence.
However, federal law does prohibit most family violence
respondents subject to final orders from possessing or
purchasing firearms or ammunition. 18 USC 922
1.
Solid authority indicates the critical importance of
limiting gun possession and use in family violence
situations. In 1999 approximately, 15% of the
790,000 violent assaults against intimate partners
involved the use of a weapon by the assailant.

2.

3.

(Rennison, 2003) Leaving a respondent with access
to a gun increases the risk that later incidents of
violence will turn lethal. A study of intimate
partner assaults in Atlanta found that these assaults
were twelve times more likely to result in death to
the victim if a firearm was present (Saltzman,
1992). From 1990 to 2002, over two-thirds of
spouse and ex-spouse victims were killed by guns
(Bureau of Justice Statistics, 2005). Those who
research the risk factors for intimate partner
homicide indicate the importance of enforcement of
the legal prohibition of gun ownership by those
convicted of domestic violence and the inclusion of
firearms search-and-seizure provisions in orders of
protection. (Campbell et al, 2003)
Federal law renders it illegal for any intimate
partner respondent against whom a court, after a
hearing of which the respondent had notice, and
includes a finding that such person represents a
credible threat to the physical safety of such
intimate partner or child; or (ii) by its terms
explicitly prohibits the use, attempted use, or
threatened use of physical force against such
intimate partner or child that would reasonably be
expected to cause bodily injury has issued a final
restraining order to receive, transfer or possess a
firearm. 18 U.S.C.A. § 922(g)(8). (See Appendix
E - Firearms). 18 USC §922(g)(9) prohibits a
convicted respondent from possessing firearms if
he/she has been convicted of a misdemeanor crime
of family violence. In U.S. V. Hayes, 129 S. Ct.
1079 (2009) the Supreme Court held that domestic
relationship did not have to be a defining element of
the predicate offense. The domestic relationship
would have to be established but did not need to be
an element of the predicate offense. Thus, in a final
order, a Georgia court has ample authority to order
law enforcement to confiscate any weapons in the
respondent’s possession. Given the severity of the
risk inherent in the link between firearms and
domestic violence, courts should consider such
provisions in every order.
These federal laws apply only to respondents
subject to final orders; they do not apply to orders
issued ex parte. See 18 U.S.C.A. § 922(g)(8)(A).

3:3

(a)

3.2.3

3:4

Under Georgia law, however, a Georgia
court has the authority to order temporary
confiscation of the respondent’s firearms in
a family violence ex parte order. O.C.G.A.
§ 19-13-3(b). “The court may order such
temporary relief ex parte as it deems
necessary to protect the petitioner or a minor
child of the household from violence.” Such
a provision permits law enforcement to
remove a major risk to the petitioner’s safety
during the critical time between ex parte and
final orders. See Section 3.2.7(B)(3) for
limitations regarding firearms in stalking
orders.
(b)
Respondents have the opportunity to regain
possession of the firearms by successfully
contesting the petition at the later hearing.
C.
Restraining the Petitioner (Mutual Orders): A
respondent may not request that a restraining order be
issued against the petitioner, and the court shall not issue or
approve such an order, unless the respondent has filed a
verified counter petition against the respondent sooner than
three days before the final hearing. See Williams v. Jones,
291 Ga. App. 395, 662 S.E.2d 195 (2008). The three day
period does not include Saturdays, Sundays, or legal
holidays. O.C.G.A. § 19-13-4(a).
1.
This requirement applies both to orders directing
the cessation of violence, O.C.G.A. § 19-134(a)(1), and orders preventing harassment or
interference. O.C.G.A. § 19-13-4(a)(9).
2.
Absent such a counter petition, “a court shall not
have the authority to issue or approve a mutual
restraining order”, regardless of evidence at hearing
concerning the petitioner’s behavior.
3.
There is much debate about mutual orders of
protection. Zorza (1999) lists several ways that
mutual orders have unintended consequences that
can endanger and negatively impact all parties.
Children:
A.
If petitioner and respondent have minor children, only
family violence orders permit the court to address custody,
visitation, and child support. Neither stalking protective
orders, O.C.G.A. § 16-5-94(d), nor employer protective
orders O.C.G.A. § 34-1-7(e) permit courts to address
these issues.

B.

C.

D.

E.

Since batterers are twice as likely as non-batterers to ask
for custody of their children (Bowermaster & Johnson,
1998) (Zorza, 1995), and since "approximately 70% of
contested custody cases, (in the U.S.), that involve a history
of domestic violence result in an award of sole or joint
custody to the abuser" (Aiken & Murphy, 2000), the court
plays a crucial role in assuring not just the physical but also
the emotional safety of each child raised in a violent home.
Most sources recommend that a finding of domestic
violence should create a presumption that the perpetrators
of violence not have sole or joint custody of children
including the NCJFCJ Model Code, the American
Psychological Association, the American Bar Association,
and the U. S. Congress through a Sense of Congress
Resolution (Jaffe, Lemon et.al., 2003).
A custody or visitation order that leaves the details about
exchanges and holiday time unspecified other than "to be
negotiated by the parties" poses a safety risk. (Mathis &
Tanner, 1998) Very young children are particularly
vulnerable. The first two years of life have a critical impact
on brain development. Trust, impulse control, and the
ability to form positive intimate relationships are formed
during this time. The absence of appropriate nurturing to
develop these life-long qualities, form the seeds of adult
violence. (Karr-Morse & Wiley, 1997) (Hunter, 2003)
Due to the toll that family violence takes on children, the
court may want to consider assessing all domestic relations
cases for violence. (See Appendix C - Screening for
Domestic Violence) (See also Appendix O - Children and
Domestic Violence)
Custody and Visitation: In family violence orders, the
court may award “temporary custody of minor children and
establish temporary visitation rights.” O.C.G.A. § 19-134(a)(4).
1.
The “temporary” nature of such orders refers both:
(a)
to the period between an ex parte order and
the hearing on the petition; and
(b)
to the period of the final order, which the
statute limits to “up to one year.” O.C.G.A.
§ 19-13-4(c) unless extended through
motion and a hearing..
2.
Custody:
(a)
In making custody decisions, the court shall
determine “solely” “what is for the best
interest of the child or children and what
will best promote their welfare and

3:5

3.

3:6

happiness.” 19-13-3(a)(2). Baca v. Baca,
256 Ga. App. 514, 568 S.E.2d 746 (2002).
However, the court may draw on existing
custody law in reaching custody decisions.
(See Appendix K, Paragraph D - Safeguards
for Judicial Consideration in Mediated
Agreements)
(b)
Where the court has made a finding of
family violence, O.C.G.A. § 19-9-3(a)(3)
adds additional factors that a court must
consider in reaching a custody decision:
(1)
the court “shall consider as primary”
the child’s safety and well-being, and
that of the parent who is the victim
of violence.
(2)
the court “shall consider” the
respondent’s history of causing harm
or fear of harm.
(3)
the victim has been forced to relocate
or to be absent from the child
because of the alleged violence, the
court shall not treat the absence or
relocation as an abandonment.
(c)
O.C.G.A. § 19-9-1 exempts family violence
petitioners and respondents from the
requirement of filing parenting plans with
the family violence court.
Visitation: Special statutory considerations apply
when a court awards visitation to a respondent
found to have committed acts of family violence.
(a)
In general, a court may award visitation to a
parent who has committed acts of family
violence “only if the court finds that
adequate provision for the safety of the child
and the parent who is a victim of family
violence can be made.” O.C.G.A. § 19-9-7.
(b)
As a practical matter, ongoing contact
between parents about visitation represents a
flashpoint where violence (or threats of
violence) can recur. Protective orders can
ease these risks through careful
consideration of both the rights and the
protections afforded the parties. (See
Appendix K, Paragraph D - Safeguards for
Judicial Consideration in Mediated
Agreements) (See also Appendix N,

4.

Paragraph B. Suggestions for Consideration
in Cases Involving Domestic Violence)
(c)
O.C.G.A. § 19-9-7 identifies a range of
different protective measures a court may
take, including:
(1)
requiring exchange of the child “in a
protected setting.”
(2)
requiring supervised visitation. See
also O.C.G.A. § 19-9-3.
(3)
mandating completion of an FVIP
program “as a condition of
visitation.”
(4)
preventing the use of alcohol,
marijuana or any regulated substance
during and for 24 hours before
scheduled visitation.
(5)
prohibiting overnight visitation.
(6)
requiring a bond from the
perpetrator.
(d)
Supervised visitation:
(1)
where the court orders supervised
visitation, it may also order the
perpetrator to pay the costs of
supervision. O.C.G.A. § 19-97(a)(5).
(2)
where a family or household member
is to supervise visitation under the
order, the court “shall establish
conditions to be followed during
visitation.” O.C.G.A. § 19-9-7(d).
(e)
These remedies are non-exclusive. The
court may impose “any other condition that
is deemed necessary to provide for the
safety of the child, the victim of family
violence, or another family or household
member.” O.C.G.A. § 19-9-7(a)(8). See
e.g. Carroll v. State, 224 Ga. App. 543, 546,
481 S.E.2d 562, 564 (1997) (describing an
order requiring 48 hours notice before the
exercise of visitation.)
(f)
Whether the court prevents or allows
visitation, the court may order that the
address of the child and the victim remain
confidential. O.C.G.A. § 19-9-7(b).
A court may not condition an award of custody or
visitation to an adult victim of family violence on

3:7

F.

3:8

the victim’s attendance at joint counseling with the
perpetrator. O.C.G.A. § 19-9-7 (c).
5.
The Court of Appeals has stated that it may be the
“better practice” to include findings of fact in
support of orders of custody and visitation. Baca v.
Baca, 256 Ga. App. 514, 568 S.E.2d 746 (2002).
(a)
In Baca, however, the court affirmed an
award of custody and visitation even where
the court failed to include specific findings
of fact.
(b)
“We will not simply presume the trial court
misapprehended the law unless the record
clearly reflects such misapprehension.” Id,
256 Ga. App. at 518.
Child support: In family violence orders, the court may
“Order either party to make payments for the support of a
minor child as required by law” O.C.G.A. § 19-13-4(a)(6).
(See Appendix K, Paragraph D - Safeguards for Judicial
Consideration in Mediated Agreements) (See also
Appendix N, Paragraph B- Suggestions for Consideration
in Cases Involving Domestic Violence)
1.
The reference to “support. . . as required by law”
refers generally to the provisions of Georgia’s child
support statutes. O.C.G.A. § 19-6-14 – 19-6-34.
2.
O.C.G.A. § 19-6-15 (c)(1) requires the use of child
su pport worksheets and the new child support
guidelines in all temporary or final legal child
support proceedings. The child support worksheets
shall be used when the court enters a temporary or
permanent child support order. Currently, the
worksheets and schedules do not have to be filed
with the protective orders. Thus child support
worksheets are not required with the filing of the
Family Violence petition or Order, but the
guidelines and provisions are to be used to
determine the amount. www.georgiacourts.org/csc/.
3.
If a petition requests child support, Superior Court
Rule requires the parties to file financial affidavits
and child support worksheets. Uniform Superior
Court Rule 24.2. www.georgiacourts.org/csc/.
(a)
“In family violence actions filed under
O.C.G.A. § 19-13-1 et seq., the affidavit
and schedules may be filed and served on or
before the date of the hearing… and shall
not be required at the time of the filing of

3.2.4

the action.” Uniform Superior Court Rule
24.2.
(b)
The rule leaves the court discretionary
authority:
(1)
to hold parties in contempt for failing
to file an affidavit; and
(2)
to continue the hearing until an
affidavit is filed, which may cause a
problem with the 30 day period.
4.
Contempt: If a non-custodial parent does not pay
child support as ordered in the Protective Order, a
contempt action can be brought. In James-Dickens
v. Petit-Compere, 299 Ga. App. 519, 683 S.E.2d 83
(2009) the petitioner attempted to file for a
contempt hearing on child support arrears but was
denied because the TPO would expire before the
hearing. The Court held that the child support
arrears are enforceable after an underlying order has
expired
Property and Money: The Family Violence Act permits the court
to address possession of the premises and the provision of shelter
to the petitioner; temporary division of personal property if
married; and spousal support. Neither stalking protective orders,
O.C.G.A. § 16-5-94(d), nor employer protective orders. O.C.G.A.
§ 34-1-7(e) permit courts to address these issues in those actions.
A.
Shelter and possession of the residence:
1.
Family violence can severely dislocate the
petitioner; indeed, the risk of losing shelter may
serve as one pressure keeping the petitioner in an
abusive relationship.
a.
The Family Violence Act recognizes this
reality by providing both for possession of
an existing residence and for payment for
alternate housing for a spouse, former
spouse or parent and the party’s child or
children.
b.
Note that petitioners in crisis may also have
access to family violence shelters.
However, many shelters in Georgia are not
equipped to provide housing to male
children over the age of twelve. (See
Resources, A. Local Resources)
c.
At the same time, courts will often face the
prospect of removing the respondent from a
residence in which the respondent has a

3:9

2.

3:10

primary, and perhaps even sole ownership
interest.
d.
The emergency created by the underlying
acts of family violence can thus result in
dislocation for the respondent, and the
imposition of added housing costs.
Possession of Residence:
a.
The Family Violence Act permits a court to
“grant to a party possession of the residence
or household of the parties.” O.C.G.A. §
19-13-4(a)(2).
b.
There appears to be a difference between
superior courts on whether the statute allows
an award of possession to a party with no
ownership interest in the premises.
(1)
A party seeking protection and
possession of the residence may have
a variety of different forms of
interest in the premises, including:
(i)
sole or joint title: the court
has clear authority to order
that the party receive
possession.
(i)
inchoate interests: a spouse
may claim an inchoate
interest in the assets of the
other spouse. The other party
can counter that the premises
reflect separate property.
Spouses would normally
resolve contested inchoate
claims through divorce.
(ii)
tenancy: a party who lives in
premises owned by another
by agreement with the owner
may qualify as a tenant, with
rights to possess defined by
the terms of their agreement.
Parties would normally
resolve competing claims to
possession through a
dispossessory action.
(iii)
invitee status: a party who
lives in premises owned by
another by permission of the
owner may qualify as an

(2)

(3)

(4)

(5)

(6)

invitee. The owner in such a
case would have the ability to
dispossess the invitee without
resort to judicial process.
The Family Violence Act refers to
“residence or household” of the
parties, terms which in normal usage
refer to either where or with whom a
person lives. These terms often
cover arrangements in which the
resident or household member does
not have an ownership interest, such
as leases. The statute does not
explicitly require fact-finding on
legal ownership of the relevant
property.
Any order of possession under the
Family Violence Act has a maximum
time limit of one year unless
extended. Orders of possession thus
do not constitute a permanent shift in
legal title, although permanent orders
could in effect do this. The statute
also provides limited authority for
the court to order one party to bear
the cost of two residences. See
below (alternate housing for spouses,
former spouses, or parents of shared
children).
It seems clear that the legislature did
not intend that parties use Family
Violence action to settle permanently
disputes over title.
At the same time, it also seems clear
that the legislature did intend to
allow courts to award possession of
the premises where necessary to
alleviate dislocations caused by
family violence.
The possessory provisions of the
Family Violence Act are
discretionary, not mandatory, and
leave a court with discretion to find
other remedies relating to shelter.
See O.C.G.A. § 19-13-4 (a).

3:11

c.

d.

e.

3:12

A court can consider these practical and
legal dimensions, and can structure
possessory remedies that include:
(1)
Shorter time frames for an owner to
regain possession of the premises by
a party-owner that differ from those
of the underlying order.
(2)
Provisions for payment of rent or
mortgage to ensure ongoing stability
of possession. (See Appendix K,
Paragraph D - Safeguards for
Judicial Consideration in Mediated
Agreements).
(3)
Provisions for alternate shelter
should a third party successfully
foreclose or regain possession of the
residence or household.
Rights of third parties:
(1)
Ownership: Orders for possession
only bind the parties to the action,
and not any interested third parties,
including mortgagees.
(2)
Lease: A court order for possession
does not bind the landlord to accept
the remaining tenant. Petitioners
who remain in possession of leased
premises may face eviction if they
are not already party to the lease
agreement. Moreover, tenants
renting from HUD-subsidized public
housing may face eviction because
they have been party to a violent
incident, even where they were an
innocent victim.
Exclusion or eviction of “other party”:
where the court has awarded possession to
one party, the court may also:
(1)
“exclude the other party from the
residence or household”, O.C.G.A. §
19-13-4(a)(2).
(2)
“order the eviction of a party from
the residence or household”,
O.C.G.A. § 19-13-4(a)(5).
(3)
“order assistance to the victim in
returning to” the residence or
household. Id.

3.

B.

Alternate housing: Instead of awarding
possession, the court can also “require a party to
provide suitable alternate housing for a spouse,
former spouse, or parent and the parties' child or
children.” O.C.G.A. § 19-13-4(a)(3).
a.
A court cannot provide for alternate housing
for unmarried parties who have not had
children together.
Personal property:
1.
The court may also “provide for possession of
personal property of the parties.” O.C.G.A. § 1913-4(a)(8).
a.
The statute states no standard for the
division of personal property, nor does case
law provide guidance.
b.
A potential question exists about the extent
of the court’s authority over “personal
property”:
(1)
On the one hand, items such as
clothing, utensils, furniture, cars and
personal tools would seem well
within the scope of the statute.
(2)
On the other hand, personalt property
such as stocks and investments,
pension plans and other assets of
comparable value might raise more
questions:
(3)
Married parties would normally
resolve their competing claims
through divorce.
(4)
Unmarried parties would have to use
a partition action with respect to
jointly held assets.
(5)
It is not clear that the legislature
intended the Family Violence Act as
an alternative to those remedies.
c.
The Family Violence Act grants the court
authority only to “provide for possession.”
(1)
It does not authorize permanent
settling of competing claims to title.
(2)
Family violence orders are
necessarily time-limited, and seem
intended only to meet needs, which
might arise during that time period.
d.
A rule of reason would seem to distinguish
between:

3:13

“Dividing” personal assets to which
the parties will need access during a
time-limited order, and
(2)
Permanently settling ownership of
assets to which the parties have
contested claims.
2.
Transferring personal property: contact between
parties around retrieval of personal property
presents another point where violence (or threats of
violence) can recur.
a.
Protective orders can ease these risks
through careful advance delineation of the
times, places and circumstances of retrieval.
b.
The court may “order assistance in
retrieving personal property of the victim if
the respondent's eviction has not been
ordered”. O.C.G.A. § 19-13-4(a)(5). To
prevent problems the court can order that the
respondent be accompanied by local law
enforcement to retrieve personal property.
c.
The statute does not explicitly mention
structuring an order for retrieval of the
respondent’s personal property if the
respondent has been evicted. However, the
court’s authority to structure the
respondent’s contact with the petitioner
gives it discretion to arrange for the
respondent to recover possession of personal
property.
Spousal support:
3.
The court may “order either party to make payments
for the support of a spouse as required by law.”1913-4(a)(7). (See Appendix K, Paragraph D Safeguards for Judicial Consideration in Mediated
Agreements)
a.
The statute specifies “support of a spouse”;
the provision does not authorize support
between unmarried partners.
b.
The reference to “support . . . as required by
law” refers generally to the provisions of
Georgia’s alimony statutes. O.C.G.A. § 196-1 – 19-6-13.
4.
The alimony statute distinguishes between
temporary and permanent alimony. O.C.G.A. § 196-1 (a).
(1)

C.

3:14

a.

3.2.5

The Family Violence Act does not specify
whether to use the standards for “temporary
alimony”, O.C.G.A. § 19-6-3, or for
“permanent alimony”, O.C.G.A. §§ 19-6-1,
19-6-5 (a), in calculating the amount of the
award.
b.
The temporary alimony statute states that the
court “in fixing the amount of alimony, may
inquire into the cause and circumstances of
the separation rendering the alimony
necessary and in his discretion may refuse it
altogether”. O.C.G.A. § 19-6-3(c).
c.
The permanent alimony statutes also permit
the court to consider the conduct of either
party in determining whether and how much
alimony to award. O.C.G.A. § 19-6-1 (b),
(c); Bryan v. Bryan, 242 Ga. 826, 251
S.E.2d 566 (1979); Davidson v. Davidson,
243 Ga. 848, 257 S.E.2d 269 (1979). In
general, the court must also consider “the
wife's need and the husband's ability to
pay.” Bryan, 242 Ga. at 828. The statute
requires the court to consider a series of
more specific factors in determining the
amount of alimony. O.C.G.A. § 19-6-5(a).
Counseling and Family Violence Intervention Programs:
A.
Psychiatric or Psychological Services:
1.
In family violence actions, the court may “order the
respondent to receive appropriate psychiatric or
psychological services as a further measure to
prevent the recurrence of family violence.”
O.C.G.A. § 19-13-4(a)(11).
(a)
Family violence orders can require only the
respondent to undergo counseling.
(b)
Counseling must serve “to prevent the
recurrence of family violence.”
2.
In stalking actions, the court may “order either or all
parties to receive appropriate psychiatric or
psychological services as a further measure to
prevent the recurrence of stalking.” O.C.G.A. §
16-5-94 (d)(4).
(a)
Stalking orders can require either the
respondent, the petitioner or both to undergo
counseling.
(b)
Counseling must serve “to prevent the
recurrence of stalking.”

3:15

3.

B.

C.

3:16

In employer protective order cases, the statute does
not authorize the court to order counseling of any
kind.
The statutory requirement for “appropriate” services seem
to require fact-finding on the need for and impact of any
proposed counseling service.
1.
The petitioner has the burden of proving the need
for and the particular type of counseling requested
in the order.
2.
The mandate for “appropriate” services suggests a
relationship between the nature and goals of the
specific services and its intended effect on the
specific individual.
3.
Types of “psychiatric and psychological services”:
a court might consider various forms of psychiatric
and psychological services. (See Appendix I Mental Illness and the Court and Appendix G Family Violence Intervention Programs)
Joint counseling:
1.
Joint counseling requires ongoing contact between
petitioner and respondent and is not recommended
because it presents a risk that further violence,
threats of violence or re-traumatization may occur.
2.
In family violence cases, the court has authority to
require only the respondent, and not the petitioner,
to engage in counseling. The court may require
petitioner to engage in counseling only where the
respondent files an appropriate counter-petition.
O.C.G.A. § 19-13-4(a). The presence of a properly
filed counter-petition does not mandate joint
counseling.
3.
In stalking cases, the court has authority to order
“either or all parties” to engage in counseling.
O.C.G.A. § 16-5-94 (d)(4). The statute neither
mandates nor prohibits joint counseling. The term
“either or all” can be interpreted either to require
separate counseling or to permit joint counseling.
No case law interprets the point.
4.
The overarching purpose for both, family violence
orders or stalking orders remains “to bring about a
cessation of acts of family violence” or “of conduct
constituting stalking.”
(a)
Both family violence orders and stalking
orders permit the issuance of orders for
conduct, which might recur during future
contact between the parties.

(b)

D.

Given this, the court must weigh:
(1)
The extent to which joint counseling
might lead to the cessation of
violence or stalking
(2)
Against the risk that violence or
stalking might recur during, or as a
result of, joint counseling.
(c)
Other provisions suggest a presumption
against joint counseling:
(1)
The guidelines for mediation
between couples in cases involving
family violence explicitly prevents
mediation in cases where the victim
does not consent, after full
disclosure: “No case involving
issues of domestic violence should
be sent to mediation without the
consent of the alleged victim given
after a thorough explanation of the
process of mediation.
(2)
In custody disputes, a court may not
order joint counseling as condition of
receiving custody or visitation of a
child. O.C.G.A. § 19-9-7(c).
Family Violence Intervention Programs (FVIP):
1.
A “family violence intervention program” means:
(a)
“Any program that is certified by the
Department of Corrections pursuant to Code
Section 19- 13-14 and designed to
rehabilitate family violence offenders.”
O.C.G.A. § 19-13-10(6).
(b)
The term includes “batterer intervention
programs, anger management programs,
(c)anger counseling, family problem resolution, and
violence therapy.” Id.
2.
Family violence intervention programs differ
significantly from programs that address anger
management. (See Appendix G - Family Violence
Intervention Programs)
(a)
The latter targets individuals involved in
road rage, bar fights or neighbors fighting:
individuals who make a poor choice and use
their anger offensively during an isolated
incident.
(b)
In domestic violence, where there is a
pattern of using violence and intimidation to

3:17

3.

4.

3:18

control an intimate partner, anger
management does not account for
premeditated controlling behaviors of
abusers and may be dangerous to the victim.
(Gondolf & Russell, 1986) Recent research
has raised further questions about the use of
anger management as a remedy for batterers.
(Gondolf, 2002)
(c)
Certified family violence intervention
programs directly address the unique aspects
of this behavior and have proven a far more
effective method than anger management
programs.
Georgia law requires the certification of these
programs:
(a)
The Department of Corrections certifies
these programs, O.C.G.A. § 19-13-15, and
promulgates and administers the rules and
regulations under which the programs
operate, O.C.G.A. § 19-13-14.
(b)
The programs may be operated by private
business, or by public entities, including
specifically the Department of Corrections
and the State Board of Pardons and Paroles.
O.C.G.A. §§ 19-13-14(b), 19-13-15.
(c)
The Department of Corrections must
maintain a list of certified programs,
available to the public and the courts.
O.C.G.A. § 19-13-14(f). The list is
available and updated on the Georgia
Commission on Family Violence at
http://www.gcfv.org/
FVIP orders:
(a)
“When imposing a protective order against
family violence”, a court “shall order the
defendant to participate in a family violence
intervention program.” O.C.G.A. § 19-1316(a).
(1)
The definition of “family violence”
excludes employer protective orders.
O.C.G.A. § 19-13-10(5). Courts
need not order FVIP in such cases.
(2)
Participation in FVIP by the
respondent is mandatory in family
violence cases.

(3)

E.

A court may waive the requirement
only if “the court determines and
states on the record why
participation in such a program is not
appropriate.” O.C.G.A. § 19-1316(a).
(b)
The defendant must bear the cost of
participation in FVIP. O.C.G.A. § 19-1316(c). “If the defendant is indigent, the cost
of the program shall be determined by a
sliding scale based upon the defendant's
ability to pay.” Id.
Enforcement: FVIP orders, and orders for psychiatric or
psychological counseling, pose special problems of
enforcement.
1.
If the respondent fails to comply with such an order,
only the petitioner or the service provider stand in a
position to request enforcement of the order. (See
Appendix G, Paragraph C - Monitoring by the
Court). Some courts are ordering the respondents to
return to court on a specific date to prove that they
are in compliance with this order; and some require
them to prove that they have attended three sessions
by that date, and order them held on contempt if
they are not in compliance.
(a)
The petitioner’s ability to enforce the order
depends upon the petitioner’s knowledge of
the respondent’s compliance. Nothing in the
statute requires notice to the petitioner of the
respondent’s record of compliance.
(b)
The service provider may or may not have
sufficient incentive to report noncompliance to the court, at least in the civil
context. Nothing in the statute gives the
court authority to compel the service
provider to report on the respondent’s record
of compliance.
2.
In the event the court does learn of non-compliance,
the court has a limited pool of remedies for noncompliance with an order.
(a)
Neither the remedial provisions of the
family violence or stalking statutes, nor the
FVIP article in the Family Violence Act
provide any explicit method for enforcement
of these orders.

3:19

The misdemeanor offense of “violating [a]
family violence order” does not include
failure to attend counseling or FVIP in the
definition of the offense. O.C.G.A. § 19-595(a)(1-4).
(c)
The felony offense of “aggravated stalking”
for violation of a stalking order does not
include failure to attend court-ordered
counseling in the definition of the offense.
O.C.G.A. § 19-5-91(a).
3.
Civil contempt represents the most likely remedial
measure available to a court. (See Section 3.5.5,
below). Civil contempt orders permit the court to
impose incarceration or fines, which the respondent
may purge by complying with the provisions of the
order.
Attorneys fees:
A.
In family violence and stalking cases, the court may “award
costs and attorney's fees to either party.” O.C.G.A. §§ 1913-4(a)(10), 16-5-94(d)(3).
1.
The award of costs and fees is not authorized for
employer protective order cases, O.C.G.A. § 34-17.
2.
The family violence and stalking statutes provide no
explicit standard for determining whether to award
costs and fees or how much to award.
3.
The divorce standard for determining an award of
fees appears not to apply under the Family Violence
statute, O.C.G.A. § 19-6-2(a)(“disparity in
income”); Suarez v. Halbert, 246 Ga. App. 822, 543
S.E.2d 733 (2000). The Court of Appeals reversed
an award of fees, stating in dicta that the “disparity
of income” standard was inapplicable in family
violence cases.
B.
Awarding costs and fees “to either party”:
1.
The stalking and family violence statutes permit the
court to award costs and fees “to either party.” The
language appears to permit the award of fees in
favor of the prevailing party.
2.
The language “either party” does not justify an
award of fees against the prevailing petitioner. In
Suarez v. Halbert, 246 Ga. App. 822, 543 S.E.2d
733 (2000), the Court of Appeals reversed the
award of fees against grandparents who have
successfully obtained a restraining order granting
them custody of a grandchild.
(b)

3.2.6

3:20

(a)

3.2.7

In that case, a trial court had awarded
attorney’s fees against a prevailing party in a
family violence act, finding a “disparity of
income” between the parties.
(b)
The Court of Appeals held that the Family
Violence Act contained no authority for
awarding attorney’s fees against the
prevailing party.
(c)
“Imposing attorney fees upon wellintentioned petitioners seeking to thwart the
occurrence or recurrence of family violence
would only serve to deter others from filing
similar actions.” Id at 825.
C.
Standard of review: the Georgia Supreme Court has
applied an abuse of discretion standard in reviewing an
award of attorney’s fees under the Family Violence Act.
Schmidt v. Schmidt, 270 Ga. 461, 463, 510 S.E.2d 810
(1999) (“we cannot say that the trial court abused its
discretion in awarding $1,500.00 in fees in this case.”)
Stalking order remedies:
A.
Georgia law provides for fewer remedies in a stalking order
than for a family violence order, O.C.G.A. § 16-5-94(d)(14). A court may:
1.
“Direct a party to refrain from” stalking conduct.
2.
“Order a party to refrain from harassing or
interfering with the other.”
3.
“Award costs and attorney's fees to either party.”
4.
“Order . . . appropriate psychiatric or
psychological services.”
(a)
The statute permits the court to order “either
or all parties” to undergo these services.
(b)
The statute does not require a court to order
a party into a family violence intervention
program. O.C.G.A. § 19-13-16(a).
B.
The statute states that stalking remedies should be designed
“to bring about a cessation of conduct constituting
stalking.”
1.
An order may not restrict behavior that does not
constitute stalking as defined in the statute.
2.
In Collins v. Bazan, 256 Ga. App. 164, 568 S.E.2d
72 (2002), the Court of Appeals reversed a stalking
order that prevented the respondent from publishing
or discussing the petitioner’s medical records.
(a)
The court found that the respondent’s
behavior, although “extremely insensitive

3:21

3.2.8

3:22

and unacceptable”, would not “threaten [the
petitioner] or [her] family’s safety.”
(b)
The court noted that it interpreted the statute
in such a way as to avoid an unconstitutional
burden on the respondent’s freedom of
speech.
3.
In Rawcliffe v. Rawcliffe, 283 Ga. App. 264 (2007),
the Georgia Court of Appeals held that the trial
court exceeded its authority when it prohibited the
respondent from owning or possessing firearms in a
Stalking Twelve Month Protective Order. The
Court held that the prohibition of owning or
possession a firearm for the duration of the
protective order was not set forth in O.C.G.A. 165-94(d). Id. at 265. The Court stated that the relief
a court may provide pursuant to O.C.G.A. § 16-594 is limited to that listed in the statute. The
protective order was not vacated, only the section
dealing with possession of or owning firearms. The
parties did not come under the protection of the
Brady Gun Act 18 USC 922(g) as they had not been
intimate partners. The court was not specifically
authorized to prohibit owning or possessing a
firearm.
C.
Where the parties meet the relationship requirements of the
Family Violence Act then O.C.G.A. § 19-13-1 et seq.
should be used so that the additional remedies available
under the Family Violence Act can be used.
1.
The family violence act extends only to a limited
pool of relationships, but it does include “stalking”
in the definition of family violence. See above and
O.C.G.A. § 19-13-1.
(a)
The stalking act applies to anyone who
stalks another person, with relational
restrictions.
(b)
Petitioners who suffer from stalking and
who have a relationship defined in the
Family Violence Act may use either or both
statutes.
2.
Stalking petitioners who seek family violence
remedies must satisfy the petition and filing
requirements of the Family Violence Act.
Employer protective order remedies:
A.
Employer protective orders may only order the cessation of
“unlawful violence or threats of violence”. O.C.G.A. § 341-7(e). Since the petitioner is not the victim, but the

3.2.9

employer, no overlap with either family violence or
stalking orders exists.
B.
An employer protective order can be effective at one or
more locations:
1.
“At the employee’s workplace”; or
2.
“While the employee is acting within the course and
scope of employment with the employer.” Id.
C.
Orders designed to protect the employee while “acting
within the course or scope of employment” might refer to
many additional locations, depending on the employee’s
work responsibilities.
D.
If the court issues a “scope of employment” order, the court
should consider proper service on law enforcement
personnel in jurisdictions where the employee might work,
if outside the court’s jurisdiction.
1.
The employer protective order statute puts the
initial burden on the petitioner to suggest to the
court those law enforcement agencies to whom the
order should be delivered. O.C.G.A. § 34-1-7(g).
2.
The court has discretion to select among those
agencies requested by the petitioner. Id.
3.
Once the court has determined the appropriate
agencies, the court “shall order the petitioner or the
petitioner’s attorney” to assure proper deliver of the
order by the close of the business day on which the
order was issued. Id.
Judicial discretion over remedies:
A.
Combination and Selection of Remedies:
1.
In family violence and stalking cases, a court has
discretion over which remedies to order. The
language of the relevant statutes uses permissive,
rather than mandatory language. O.C.G.A. §§ 1913-4(a) (“may”), 16-5-94(d) (“may”).
(a)
A court also has discretion over the duration
of the order, which may remain in effect “up
to one year”, O.C.G.A. §§ 19-13-4(c), 16-594(e).
(b)
Courts may thus consider how to tailor
orders to best meet the proof and the needs
of the parties.
(c)
For example, a court may enter:
(1)
protective provisions for the full
year,
(2)
provisions for possession of a
premises for a shorter time,

3:23

(3)

B.

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provisions to transfer personalty
within one week.
2.
A court does not have discretion in employer
protective order cases. If a court finds that the
petitioner has met the relevant burden of proof, “an
injunction shall issue.” O.C.G.A. § 34-1-7(h).
Remedies under Other Statutes:
1.
The Family Violence Act does not bar petitioners
from seeking other legal remedies. “The remedies
provided by this article are not exclusive but are
additional to any other remedies provided by law.”
O.C.G.A. § 19-13-5.
(a)
The stalking order statute incorporates this
language by reference. O.C.G.A. § 16-594(e).
(b)
The employer protective order statute does
not so state, but does clarify that it should
not “be construed as expanding,
diminishing, altering, or modifying the duty,
if any, of an employer to provide a safe
workplace for employees and other
persons.”
2.
Other remedies to prevent the occurrence and to
cope with the consequences of family violence
include:
(a)
Criminal law: a variety of different crimes,
sentences and bonds address the specific
demands of those seeking protection from
family violence. (See Chapter 4 - Criminal
Law).
(b)
Family law: family law offers a variety of
similar remedies, including protection
through preliminary relief, custody, child
support, and division and disposition of
property.
(c)
Juvenile law: juvenile law offers remedies
addressed to protecting children where
neither parent can protect them.
(d)
Tort law: tort law offers causes of action
such as assault and battery, providing both
injunctive and monetary relief.
(e)
Federal law: the federal Violence Against
Women Act and civil rights acts may offer
some relief to petitioners.

3.

C.

Petitioners seeking these other specific remedies in
the context of a family violence action must satisfy
the pleading and proof requirements of those laws:
(a)
Properly filed pleadings might permit the
superior court to consolidate actions on
protective orders with other cases.
(b)
However, other Georgia courts may have
primary jurisdiction (e.g. juvenile remedies
in juvenile court.)
Equitable Powers:
1.
On occasion, a party may request (or a court might
identify the need for) remedies other than those
stated either in the protective order statutes or
“other law”. A question arises about the scope of
the court’s authority to fashion remedies other than
those specifically stated in the relevant statutes.
2.
As an initial matter, all three protective order
statutes present their remedies in exclusive lists.
O.C.G.A. §§ 19-13-4(a), 16-5-94(d), 34-1-7(e).
(a)
The permissive “may” in the family violence
and stalking statutes, and the mandatory
“shall” in the employer statutes, each appear
before a list of specific remedies.
(b)
None of the statutes contain inclusive
language, and none contain catchall
remedial language at the end of the list.
(c)
Well-accepted canons of statutory
construction could apply to restrict the
remedies to those stated:
(1)
expressio unius est exclusio alterius
(the express mention of one thing
implies the exclusion of another)
(2)
expressum facit cessare tacitum (if
some things are expressly
mentioned, the inference is stronger
that those omitted were intended to
be excluded).
3.
On the other hand, when acting under the protective
order statutes, the superior court most likely acts as
a court of equity, with equitable powers.
(a)
The central remedy of all three statutes, an
injunction, is equitable in nature.
(b)
A superior court has authority to adjust its
decrees in response to the circumstances of
each case:

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“the superior court may mold the
verdict so as to do full justice to the
parties in the same manner as a
decree in equity.” O.C.G.A. § 9-125.
(2)
“A superior court shall have full
power to mold its decrees so as to
meet the exigencies of each case.”
O.C.G.A. § 23-4-1.
(3)
See Aycock v. Aycock, 251 Ga. 104,
303 S.E.2d 456 (1983) (affirming a
trial court order, requiring that rental
property be held in trust for children
as a form of child support.)
(c)
The protective order statutes deal with the
same subject matter as, and offer similar
remedies to, divorce actions. "Proceedings
for a divorce . . . have always, under the
practice in this State, been regarded as
equitable.” Rogers v. Rogers, 103 Ga. 763,
765, 30 S.E. 659 (1898).” Allen v. Allen,
260 Ga. 777, 778, 400 S.E.2d 15
(1991)(requiring a trial court to rule on the
enforceability of a settlement.)
(d)
However, in exercising equitable authority,
a court may not issue the requested relief if
the party can obtain the same relief through
some other adequate remedy at law.
(e)
See also Davis-Redding v. Redding, 246 Ga.
App. 792, 794, 542 S.E.2d 197, 199 (2000):
“‘divorce cases are different from other
cases, requiring some flexibility in the
application of our jurisdictional and venue
rules.’ [citation omitted] We realize this is a
family violence case rather than a divorce
case; however, even more flexibility may be
required in cases filed to bring about an end
to family violence.”
Delimiting judicial discretion on remedies:
(a)
The protective order statutes have clearly
stated standards by which a court must
exercise its remedial authority:
(1)
The family violence statute requires
that the court seek “to bring about a
cessation of acts of family violence.”
O.C.G.A. § 19-13-4(a).
(1)

4.

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(2)

(b)

3.3

The stalking statute requires that the
court seek “to bring about a cessation
of conduct constituting stalking.”
O.C.G.A. § 16-5-94(d).
(3)
The general purpose of an employer
protective order is to prohibit
“further unlawful violence or threats
of violence.” O.C.G.A. § 34-1-7(b).
Judicial flexibility seems most appropriate
when:
(1)
Specifically linked to the language of
one of the remedial clauses of the
statute; and
(2)
Logically connected to the stated
purpose of the relevant statute; and
(3)
Stated on the record with support in
specific findings of fact.

Settlements And Waiver Of Remedies
3.3.1 Consent Decrees:
A.
Consent agreements permitted: A superior court may approve
consent agreements by the parties as the basis for its order in
family violence and stalking proceedings. O.C.G.A. § 19-13-4(a)
(family violence order), O.C.G.A. § 16-5-94 (d) (stalking orders).
Although no similar, explicit provision appears in the employer
protective order statute, see O.C.G.A. § 34-1-7 (e), general
Georgia law permits the entry of consent decrees upon submission
of a settlement agreement to the court for approval. When a court
approves a consent decree, the decree operates as a waiver of any
claims addressed by that decree. Hargraves v. Lewis, 3 Ga. 162
(1847).
B.
Limits on consent agreements: The Superior Court has the
authority to revise or reject the parties’ agreement in protective
order cases.
1.
Superior Court shall not have the authority to
approve a consent-mutual protective order unless
the statutory requires of a counterpetition have been
satisfied. O.C.G.A. § 19-13-4(a)
2.
As to family violence and stalking protective orders,
the statutes indicate that the superior court “may
approve a consent agreement”; nothing in either
statute mandates that a court accept the parties’
proposed settlement. O.C.G.A. § 19-13-4(a)
(family violence order), O.C.G.A. § 16-5-94 (d)
(stalking orders). No Georgia case has determined
the scope of a superior court’s authority to revise or

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C.

3:28

reject proposed consent decrees in violence
protective order cases.
3.
With respect to certain remedies, at least, the
superior court’s authority is clearer:
(a)
With respect to child custody and child
support issues, in divorce cases, the court
may review, revise or reject any settlement
agreement relating to these issues. See
Arrington v. Arrington, 261 Ga. 547 (1991)
(child support), Crisp v. McGill, 229 Ga.
389 (1972) (child custody).
(b)
The same principles would appear to apply,
for family violence orders involving child
custody or child support.
4.
For potential dangers concerning alternative orders
to TPOs see: www.gcfv.org/files/TPOstatement.pdf
Consent without admissions by respondent:
1.
On occasion, respondents may face criminal (or
other) charges arising out of the events, which gave
rise to the civil petition.
2.
In order to obtain stipulated agreements, a practice
has arisen through which petitioner and respondent:
(a)
stipulate to the court’s authority to enter into
the order,
(b)
waive findings of fact on the occurrence of
abuse, and
(c)
state that the respondent has made no
admissions of fact with respect to the
underlying events.
3.
These provisions seek to minimize the risks that the
civil order may be used against the respondent in
the later criminal case:
(a)
Stipulations to authority: such a provision
bars later challenges to the validity of the
order by the respondent. In general, parties
may stipulate to the court’s authority over
their persons; however, objections to service
of process might survive such a stipulation.
(b)
Waiver of findings of fact: parties may
waive findings of fact, even on facts
otherwise necessary to the underlying
judgment.
(1)
Such a stipulation reduces the risk
that prosecution might successfully
admit the order on the issue of abuse
in the later criminal case.

(2)

4.

3.3.2

A general Georgia rule exists that
“‘[t]he judgment in a civil action is
not admissible in a criminal action to
prove any fact determined in the civil
action.’” Flynt v. State, 153 Ga. App.
232, 243, 264 S.E.2d 669 (1980).”
(c)
No admissions: such a provision benefits
the respondent by avoiding an admission in
judicio that could be used against him in the
later criminal trial.
Such orders may or may not prevent later
evidentiary use of the events underlying the order.
Compare
(a)
Johnson v. State, 231 Ga. App. 823, 499
S.E.2d 145 (1998): reversing a conviction
where trial court admitted a prior family
violence order. The Court of Appeals
reviewed the circumstances of the stipulated
order, noted that the defendant has not been
represented and lacked adequate opportunity
to review the terms of the order, and held
that the stipulated order could not be treated
as an admission.
(b)
Murden v. State, 258 Ga. App. 585, 574
S.E.2d 657 (2003): refusing to apply
Johnson, where the prosecution sought to
introduce prior family violence orders to
establish “course of conduct.”

Waiver:
A.
Methods of waiver: Waiver of claims and remedies may
occur in at least two different ways: by consent decree or
by dismissal. As discussed above, Georgia law permits
courts to approve consent decrees, and also permits
petitioners to dismiss claims against respondents.
B.
Limits on waiver: Parties may have a limited ability to
waive certain remedies:
1.
Child support: a party’s agreement to waive the
right to collect child support is subject to the same
conditions as apply to child support in other actions.
O.C.G.A. § 19-13-4 (a)(6). A Georgia court need
not accept a purported waiver of the right to collect
child support, but may review the parties’
agreement to determine what the welfare of the
child requires. Collins v. Collins, 172 Ga. App.
748, 749 (1984); Barrow v. State, 87 Ga. App. 572,
575-576 (1953).

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2.

3.

3.4

Mediation
3.4.1

3.4.2

3:30

Child custody: a superior court may also reject a
party’s waiver of claims with respect to child
custody in divorce cases, if against the best interest
of the children. Stanton v. Stanton, 213 Ga. 545,
549 (1957); Mock v. Mock, 258 Ga. 407, 407
(1988). The rationale underlying these cases,
appear to apply to family violence cases.
Family Violence Intervention Programs (FVIP):
Georgia law mandates that a superior court order
the respondent to an FVIP program: “a court . . .
shall order the defendant to participate in a family
violence intervention program.” O.C.G.A. § 1913-16 (a). A court may determine that participation
in FVIP is “not appropriate”, but if so, it must state
its reasons on the record. This language appears to
prevent the waiver of FVIP participation by any
party to a family violence protective order.

The Georgia Commission on Dispute Resolution, the Georgia
Supreme Court’s policy-making body for court-connected ADR
processes, has issued guidelines concerning domestic violence
issues in mediation. Those guidelines provide that mediation is not
appropriate in cases arising solely under the Family Violence Act,
that those cases should not be referred to mediation, and that issues
related to protection from family violence are not an appropriate
subject of negotiation.
Because domestic violence allegations arise in other civil cases
that are often referred to mediation, the Georgia Commission on
Dispute Resolution has issued Guidelines for Mediation in Cases
Involving Issues of Domestic Violence. These guidelines apply to
court-connected ADR programs. These guidelines apply to the
various kinds of domestic relations cases such as divorce, custody,
modification, or paternity that may involve allegations of domestic
violence. The Commission’s policy is that, in domestic relations
cases, which would otherwise be referred to mediation, the
alleging party should not be automatically denied the opportunity
to mediate when there are allegations of domestic violence. At the
same time, the guidelines permit the alleging party to choose not to
mediate where these allegations exist. To these ends, the
Commission requires that domestic relations cases be screened for
domestic violence allegations; where those allegations are present,
the alleging party must be provided with information about
mediation and the opportunity to make an informed decision as to
whether to decline or proceed with mediation. However, if the
party chooses to mediate, issues concerning abusive or violent
behavior are not subject to negotiation. In general, these

3.4.3
3.5

guidelines:
A.
state that all domestic relations cases referred to mediation
must be screened for allegations of domestic violence;
B.
state that a party alleging domestic violence must be
provided with detailed information about the mediation
process, must be interviewed to discuss the particular
circumstances of the case, and that the alleging party then
be allowed to make a decision based on informed consent
as to whether she or he wishes to participate in mediation;
C.
Specify screening procedures for use in domestic relations
cases and training requirements for screening personnel;
D.
Define domestic violence for purposes of the guidelines;
E.
Prohibit mediation in criminal cases involving domestic
violence;
F.
Provide that only mediators who have received specialized
training may mediate these cases;
G.
Specify protocols for ADR programs and mediators to
follow when mediating cases involving domestic violence;
and
H.
Describe protocols for maintaining confidentiality of
information about domestic violence elicited during
screening or mediation.
The full text of these guidelines appears in Appendix K, Mediation
to this section of the benchbook.

Orders
3.5.1 This section deals with
A.
service of Georgia protective orders,
B.
their duration and extension,
C.
their enforceability within and outside Georgia, and
D.
remedies for violating them.
3.5.2 Service of Orders
A.
None of the protective order statutes explicitly require
service of the protective order on the respondent; however,
basic principles of due process impose such an obligation.
See also O.C.G.A. § 9-11-5 (“every order required by its
terms to be served . . . shall be served upon each of the
parties.”)
B.
All three protective order statutes mandate delivery of a
copy of a protective order to certain law enforcement
agencies, although the statutes provide different methods:
1.
For family violence and stalking protective orders,
the clerk of the superior court shall issue a copy of
the order to the sheriff of the county in which the
order was entered. O.C.G.A. §§ 19-13-4(b) (family
violence order), 16-5-94(e) (stalking orders, crossreferencing the family violence statute.) The sheriff

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3.5.3

3:32

in that county shall retain the order “as long as that
order shall remain in effect”, presumably including
any extensions.
2.
For employer protective orders, the court must order
the employer or the employer’s attorney to deliver
the order (including modifications or terminations
of the order) to those “law enforcement agencies . . .
as are requested by the petitioner.” O.C.G.A. § 341-7(g). The court has discretion to review and
revise the list of such agencies. Id. Every law
enforcement agency that receives such an order
must assure that information about the order and its
status be made available to “officers responding to
the scene of reported unlawful violence or a
credible threat of violence.”
Duration and Extension of Orders
A.
Duration:
1.
Family violence and stalking protective orders
may remain in effect for up to one year unless
extended. O.C.G.A. §§ 19-13-4(c) (family
violence), 16-5-94 (stalking, incorporating the
family violence provisions.)
a.
The language “up to one year” permits the
issuance of orders for shorter periods. Id.
b.
The 30 day period of the Civil Practice Act
does not apply to family violence orders.
Carroll v. State, 224 Ga. App. 543, 481
S.E.2d 562 (1997).
c.
Research indicates that Orders of Protection
of two- week duration are less effective than
no order at all, whereas 12-month orders
reduced police-reported physical violence by
80% ((Holt et al, 2002).
d.
Because the motivation for most stalking
(particularly for intimate stalkers) is control
over the abused party, court appearances
often reinforce abusers' efforts to harass
their victims. The court can counteract this
by holding short, timely hearings and by
providing a separate waiting room for the
abused party, thereby limiting their time in
the courtroom with the abuser. See also
O.C.G.A. § 17-17-9.
2.
Employer protective orders may remain in effect
for not more than three years but may be extended
for an additional period. O.C.G.A. § 34-1-7(e).

B.

Extension:
1.
Family violence and stalking protective orders: The
petitioner may move to extend either a family
violence or a stalking order by filing a motion with
the court, requesting such an extension. O.C.G.A.
§ 19-13-4(c); O.C.G.A. § 16-5-94(e). Reynolds v.
Kresge, 269 Ga. App. 767 (2004), cert. denied,
2005 LEXIS 189 (2005).
a.
The court may not act on such a motion ex
parte: the respondent must receive notice,
and the court must hold a hearing on the
motion. Id.
b.
The court may deny the request, but may
also convert the order into “an order
effective for not more than three years or to
a permanent order.” Id.
(1)
The language “not more than three
years” permits the conversion of the
initial one-year order into an order
for an additional period less than
three years or a permanent order.
c.
The petitioner must file the motion within
the time period designated by the original
order.
(1)
The court should attempt to hear and
rule on that motion within that time
period.
(2)
Where the court can start, but cannot
complete a hearing within the
original time period, the court has
limited authority to extend the
original order long enough to
complete the hearing. Duggan v.
Duggan-Schlitz, 246 Ga. App. 127,
128, 539 S.E.2d 840, 842 (2000)
(hearing scheduled and started within
original six month period, but no
evidence taken; evidence completed
at a later date; held, authorized by
the Family Violence Act.)
(3)
In Nguyen v. Dinh, 278 Ga. 887
(2005), the Georgia Supreme Court
held that the request for the
permanent order only has to be
initiated during the time the original
order is in effect. It is immaterial

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3.5.4

3.5.5

3:34

that the order had expired by the
time the court granted the request.
2.
Employer protective orders may remain in effect
for not more than three years. O.C.G.A. § 34-17(e).
a.
The employer may apply for “a renewal” of
the order “by filing a new petition for an
injunction pursuant to this Code section.”
Id.
b.
The language “renewal” implies that, should
the court grant the request, the order can last
for up to an additional three years.
Termination of Orders
A.
Termination
1.
Family fiolence protective orders can be modified
based on changing conditions and circumstances.
O.C.G.A. § 19-13-4 (c).
2.
In Mandt v. Lovell, No. S12G2003 (2013), the
Georgia Supreme Court found that the Court has the
discretion to decrease the duration of an order when
appropriate.
2.
In order to terminate a permanent protective order, a
restrained party “must prove by a preponderance of
the evidence that a material change in
circumstances has occurred, such that the
resumption of family violence is not likely and
justice would be served by termination of the order.
Mandt v. Lovell, No. S12G2003 (2013).
3.
In considering a motion to terminate a permanent
protective order, a court should consider the totality
of the circumstances. Id.
B.
Changes in Circumstances
1.
The court in Mandt v. Lovell, No. S12G2003 (2013)
found that circumstantial changes that support the
modification or termination of a permanent
protective order include:
a.
Present nature of the parties’ relationship
b.
Proximity of parties’ residences
c.
Shared parental responsibilities
d.
History of compliance with the order
e.
History of violence
f.
Counseling or rehabilitation
g.
Age and health of restrained party
h.
Undue hardships as a result of the order
i.
Victim’s objections to termination
Enforcement of Orders

A.

B.

Enforcement within Georgia:
1.
Once issued, both family violence orders and
stalking protective orders “apply and shall be
effective throughout this state.” O.C.G.A. § 19-134(d), O.C.G.A. § 16-4-94(e).
2.
These statutes impose a duty to enforce valid
orders; the duty applies to “every superior court, . . .
sheriff, . . . deputy sheriff, . . . state, county or
municipal law enforcement officer within this
state.” Id.
3.
No similar statewide provisions appear in the
employer protective order statute. See O.C.G.A. §
34-1-7(e).
a.
When issued, employer protective orders
become effective “at the employee’s
workplace” or “while the employee is acting
within the course and scope of employment
with the employer.” Id.
b.
In addition, the petitioner must deliver the
employer protective order to such law
enforcement agencies as the court, in its
discretion and upon request by the
petitioner, may designate. O.C.G.A. § 341-7(g).
Georgia Protective Order Registry:
1.
Purpose and operation of registry: The Georgia
Protective Order Registry (GPOR) “is intended to
enhance victim safety by providing [enforcement
officials] access to protective orders issued by the
courts of this state and foreign courts 24 hours of
the day and seven days of the week.” O.C.G.A. §
19-13-52(a). (See Appendix M - Georgia Protective
Order Registry). “Access to the registry is intended
to aid law enforcement officers, prosecuting
attorneys, and the courts in the enforcement of
protective orders and the protection to victims of
stalking and family violence”. Birchby v. Carboy,
311 Ga.App. 538 (2011).
a.
The Registry “shall include a complete and
systematic record and index of all valid
protective orders and modifications,” Id, §
19-13-52(c), and “shall be linked to the
National Crime Information Center Network
(NCIC).” Id, § 19-13-52(d).
b.
The Georgia Crime Information Center
(GCIC) maintains the Registry. The

3:35

2.

3.

3:36

Georgia Commission on Family Violence
may consult with the GCIC regarding the
effectiveness of the registry in enhancing the
safety of victims of domestic violence and
stalking. O.C.G.A. § 19-13-52(b); GCIC
also collaborates with the Georgia Superior
Court Clerks’ Cooperative Authority on the
creation of forms. Id, § 19-13-53 (a).
c.
“Given the mandatory language of the Act, it
is clear that the legislature intended all
family violence protective orders be
transmitted to the Registry, without
exception. Birchby v. Carboy, 311 Ga.App.
538 (2011).
Transmittal and entry of Georgia orders: The
Superior Court clerk’s office must transmit a copy
of the protective order, or a modification of the
protective order, to the registry no later than the
close of the next business day after the order is filed
with the clerk of court. O.C.G.A. § 19-13-53(b).
Transmittal should occur electronically, or, if
electronic means fail, in a manner designated by the
GCIC. Id. GCIC will ensure that all protective
order information is entered into the registry within
24 hours of receipt from the court. O.C.G.A. § 1913-53(c). The order continues in force throughout
this period: “entry of a protective order in the
registry shall not be a prerequisite for enforcement
of a valid protective order.” O.C.G.A. § 19-1353(e).
Full Access to Georgia Orders: The Georgia
Protective Order Registry is a comprehensive web
site that is available to law enforcement officials
and the courts. The Georgia Protective Order
Registry accepts 100% of all orders filed in
Georgia. The Georgia registry will attempt to
transmit all orders to NCIC for inclusion in the
National Protective Order file. Currently 82% to
83% of all orders received from the Georgia registry
are successfully transmitted to NCIC.
Approximately 20% are rejected by NCIC due to
lack of required information – information that
many petitioners, particularly stalking victims may
not have. Protective order information will remain
on the Georgia Registry and NCIC for the

remainder of the year in which the order expires
plus five years.
Used together NCIC and Georgia’s Registry
provide a comprehensive resource for the court.
Judicial access through the Sidebar is not available
at this time. While this method of access is being
explored, judicial officers may gain access similar
to other agencies:
a.
Obtain a user ID/password form from GCIC
b.
Fill out form and return to GCIC
c.
GCIC will assign a user ID/password
d.
Confirmation form will be faxed/emailed
back to the user
4.

5.

Approval and entry of foreign orders: a person
with a valid foreign protective order may file it with
the Registry by filing a certified copy of the order
with any Georgia Superior Court Clerk. O.C.G.A.
§ 19-13-54(a). No fee or cost may be charged for
this service. Id, § 19-13-54(b). Upon filing, the
clerk must give the petitioner a receipt as proof of
submission. Id, § 19-13-54(c). The clerk must then
transmit the information in the same way as for a
Georgia order, although the foreign order need not
be in the same form as a domestic order. Id, §§ 1913-54(d), (e). Entry in the Registry is not a
prerequisite for enforcement of a valid foreign
order. Id, § 19-13-54(f); see also 18 U.S.C.A. §
2265 (d) (according foreign protective orders full
faith and credit whether or not registration in the
state of enforcement has occurred.)
Access, confidentiality, and liability: Only law
enforcement officers and the courts shall have
access to the Registry. O.C.G.A. § 19-13-52(c).
“Law enforcement officers” include any state agent
or officer “with authority to enforce the criminal or
traffic laws and whose duties include the
preservation of public order, the protection of life
and property, or the prevention, detection, or
investigation of crime”, O.C.G.A. § 19-13-51(4).
The term includes state or local officers, sheriffs,
deputy sheriffs, dispatchers, 911 operators, police
officers, prosecuting attorneys, members, hearing
officers or parole officers of the State Board of

3:37

C.

3:38

Pardons and Paroles, and probation officers with the
Department of Corrections. Id. Information
obtained from the Registry must remain
confidential, and may not be disclosed except as
provided by law; breach of this obligation is a
misdemeanor. O.C.G.A. § 19-13-55. Law
enforcement officers, court officials and registry
officials are held harmless for any delay or failure
in getting information into the Registry, or for any
reliance on information contained in the Registry.
O.C.G.A. § 19-13-56.
6.
Forms: Forms for use in transmitting Georgia
orders or modifications are promulgated under the
Uniform Superior Court Rules, and are subject to
the approval of GCIC and the Georgia Superior
Court Clerks’ Cooperative Authority as to form and
format. O.C.G.A. § 19-13-53(a). These forms
must at a minimum all the information required for
entry into the Registry and the NCIC Protection
Order file. Id. “A court may modify a standardized
form to comply with the court’s application of the
law and facts to an individual case.” Id.
Enforcement outside of Georgia:
1.
A federal statute provides that a Georgia protective
order, which meets certain requirements will
receive full faith and credit in any other state or
tribal court. 18 U.S.C.A. § 2265(a).
a.
The statute requires that the Georgia
protective order has been issued by a court
with jurisdiction over the parties and the
matter under Georgia law.
b.
The statute also requires that the respondent
have received notice and an opportunity to
be heard on the issuance of the order. Id, §
2265(b). In the case of ex parte orders,
notice and opportunity to be heard must be
provided within the time required by State.
Id.
c.
Any validly issued Georgia family violence,
stalking or employer protective order would
appear to satisfy the provisions of this act.
2.
Mutual orders: The same federal statute indicates
that a protective order which provides for protection
of the respondent against the petitioner may not
receive full faith and credit if: 1) “no cross or
counter petition, complaint, or other written

pleading was filed” against the petitioner; or 2) such
a cross or counter petition was filed, but the court
failed to “make specific findings that each party was
entitled to such an order.” 18 U.S.C.A. § 2265 (c).
Thus, to enforce a restraining order issued against
the petitioner outside of Georgia, the respondent
must have filed a petition or pleading requesting
that relief, and the court must have made specific
findings that the respondent was entitled to that
relief under the relevant statute.
3.5.6

Contempt:
A.
A superior court may punish a violation of a family
violence protective order through contempt. O.C.G.A. §
19-13-6. No similar specific statutory section exists for
stalking protective orders, or for employer protective
orders. However, the superior court has inherent authority
to use contempt for breach of its orders, O.C.G.A. § 15-6-8
(5) and O.C.G.A. § 15-1-4. This would seem to permit
orders of contempt to issue for violations of these latter
types of orders.
B.
Civil Contempt distinguished from Criminal Contempt:
Contempt may be either civil or criminal; the difference
rests on the nature of the penalty imposed by the court. If
the court imposes unconditional incarceration, the contempt
is criminal. If it imposes conditional punishment, in an
effort to force future compliance with the order, the
contempt is civil.
C.
Civil Contempt:
1.
Findings of Contempt: Contempt consists of a
party’s willful disobedience of a court’s order,
Davis v. Davis, 250 Ga. 206, 207, 296 S.E.2d 722,
723 (1980). The court recognizes three defenses to
contempt actions. “The defenses to both civil and
criminal contempt are that
a.
the order was not sufficiently definite and
certain,
b.
was not violated, or
c.
that the violation was not willful (e.g.,
inability to pay or comply).”
d.
Schiselman v. Trust Co. Bank, 246 Ga. 274,
277, 271 S.E.2d 183, 186 (1980).
2.
A superior court has broad discretion to determine
whether the original order has been violated; the
court’s findings will not be disturbed unless there is
no evidence on which the order could rest. Davis v.
Davis, 250 Ga. 206 at 207 (1982); Kaufman v.

3:39

3.

4.

3:40

Kaufman, 246 Ga. 266, 269, 271 S.E.2d 175, 178
(1980).
Contempt Remedies: as remedy for a finding of
contempt, the court may impose unconditional
incarceration, conditional incarceration, fines, or a
reassertion or clarification of its original order:
a.
Conditional incarceration: A court may also
use contempt to secure performance in the
future, and can condition incarceration upon
the performance of an act. The punished
party can purge the contempt by performing
the act. Such an order would render the
contempt civil. In Re Harvey, 219 Ga. App.
76, 79, 464 S.E.2d 34, 36 (1996). The act
required may involve the payment of
money, including the payment of child
support, Floyd v. Floyd, 247 Ga. 551, 552
(1981), but it may also require the
performance of some other act. See In Re
Harvey, 219 Ga. App. 76 (requiring
production of certain photographs as
evidence.)
b.
Conditional Fines: a court may punish
contempt by imposing a fine, not to exceed
$500 for a single act of contempt. O.C.G.A.
§ 15-6-8(5).
c.
Reassertion of original order: the court may
enforce a finding of contempt by reasserting
the provisions of its original order. If that
original order requires interpretation or
clarification, a court may interpret or clarify
it in the course of imposing a contempt
sanction. Davis v. Davis, 250 Ga. 206, 207,
296 S.E.2d 722, 723 (1982). At the same
time, a court may not modify the original
decree in the course of issuing a contempt
decree: “the decree must stand as written.”
Gallit v. Buckley, 240 Ga. 621, 626, 242
S.E.2d 89, 93 (1978). “The test to determine
whether an order is clarified or modified is
whether the clarification is reasonable or
whether it is so contrary to the apparent
intention of the original order as to amount
to a modification.” Davis, 250 Ga. at 207.
Double Jeopardy: In Tanks v. State, 292 Ga. App.
177, 663 S.E. 2d 812 (2008) the Court of Appeal

D.

vacated the judgment in the criminal proceeding
and remanded the case for determination of whether
jeopardy had attached before the prior contempt
proceeding was suspended. The respondent had
been indicted for aggravated stalking in March
2006. In April 2006, the petitioner moved for
contempt. A hearing was begun in May 2006 but
the proceeding was stayed pending the outcome of
the criminal prosecution. Both proceedings
contained the same elements.
5.
Contempt Against Petitioners: in many if not
most cases, protective orders restrain the respondent
from coming into contact with the petitioner.
a.
On occasion, however, the petitioner may
voluntarily initiate contact with the
respondent. (See Appendix A - Dynamics of
Domestic Violence) No Georgia case has
expressly ruled whether such voluntary
contact would subject the petitioner to a
finding of contempt.
b.
One Georgia Court of Appeals case suggests
that it would not. Salter v. Greene, 226 Ga.
App. 384, 386, 486 S.E.2d 650, 652 (1997).
In that case, a defendant in a family violence
battery prosecution was released with a bond
specifying that he was not to have contact
with his ex-wife. Later, the ex-wife initiated
contact with the defendant, and voluntarily
traveled to Florida with him. The Court of
Appeals reversed a finding of contempt
against the ex-wife, reasoning that the bond
condition applied only to the defendant, that
it did not apply to the ex-wife, and that it
was “issued for her protection.” Id.; In
Bradley v. State, 252 Ga. App. 293, the
victim had previously consented to contact
by the respondent but the Court upheld his
conviction for aggravated stalking because
he did not have permission on the date he
entered the house.
Criminal Contempt:
1.
Criminal contempt differs both substantively and
procedurally from civil contempt:
a.
Criminal contempt permits the court to
impose unconditional punishment, including
both fines and incarceration.

3:41

b.

2.

3.

4.

3:42

At the same time, criminal contempt
proceedings may require greater procedural
protections than civil contempt.
Procedural requirements:
a.
Georgia law requires proof of criminal
contempt beyond a reasonable doubt; by
contrast, proof of civil contempt need only
be by a preponderance of the evidence.
Schmidt v. Schmidt, 270 Ga. 461, 463, 510
S.E.2d 810, 812 (1999).
b.
Great variations exist in the other procedural
requirements required to impose criminal
contempt:
(4)
One position would treat criminal
contempt as similar to any other
criminal charge, requiring proper
accusation (through indictment or
information), right to counsel, and
other provisions of criminal
procedure.
(5)
Another position would find that,
other than the mandatory burden of
proof, criminal contempt may be
handled through process similar to
civil contempt.
c.
Other than the burden of proof, Georgia law
does not specify the degree of procedural
protection necessary for the imposition of
criminal contempt.
Alternatives to criminal contempt:
a.
aggravated stalking.
b.
misdemeanor violation of protective order.
Unconditional incarceration: as noted above, a
court may impose unconditional incarceration as a
penalty for contempt, provided it finds that
contempt has occurred beyond a reasonable doubt;
such an order would render the contempt criminal.
Georgia statute authorizes a superior court to
imprison for a single act of contempt for no longer
than 20 days, O.C.G.A. § 15-6-8 (5). A court may
order incarceration for longer periods, but only if
determines that multiple acts of contempt have
occurred, and only if it makes specific findings as to
the separate acts of contempt that account for each
20 day period. Gay v. Gay, 268 Ga. 106, 107, 485
S.E.2d 187, 188-189 (1997).

3.5.7

Criminal violation of protective orders: in addition to criminal
contempt, Georgia law recognizes two other kinds of crimes
resulting from violation of restraining orders.
A.
Georgia law recognizes a separate misdemeanor of
“violating a protective order.” O.C.G.A. § 16-5-95.
1.
This statute applies when a violation of an order
occurs both “knowingly” and “in a non-violent
manner.” Id, § 16-5-95 (a).
2.
The statute applies only to family violence
protective orders, and only to the terms of such
orders which apply to:
a.
excluding respondent from a residence. Id,
(a)(1)
b.
directing respondent to stay away from a
residence, workplace or school. Id, (a)(2).
c.
keeping respondent from approaching within
a specific distance of petitioner. Id, (a)(3).
d.
restricting communication with the
respondent. Id, (a)(4).
3.
Violation of this section does not prevent
prosecution for “stalking” or “aggravated stalking.”
Id, § 16-5-95(c).
4.
By its terms, the statute applies only to violations
“in a non-violent manner”; it does not apply to acts
of further violence.
5.
Violations of the original order, which involve
violent behavior, may justify prosecution for other
criminal charges, i.e.: aggravated stalking, a
finding of contempt or an additional restraining
order. (See above Section 3.5.5 -Contempt).
B.
In addition, the crimes of “stalking” and “aggravated
stalking” each contain definitions which focus on violations
of various different kinds of restraining orders:
1.
“Stalking” includes a requirement of proof that the
defendant violated a restraining order by publishing
or broadcasting the “picture, name, address, or
phone number” of the protected person in such a
way as to harass or intimidate the person. O.C.G.A.
§ 16-5-90(a)(2).
2.
“Aggravated stalking” requires a violation of an
existing order that prevents stalking behavior by
engaging in further stalking conduct towards the
protected person. O.C.G.A. § 16-5-91(a).
a.
Aggravated stalking requires that the
violation of the order be without the consent
of the other person, and be for the purpose

3:43

3.

3:44

of harassing and intimidating. In order to
prove the purpose of harassing and
intimidating, a single violation of the order
is not sufficient and there must be a pattern
of behavior. State v. Burke, 287 Ga. 377
(2010). Distinguished by Louisyr v. State,
307 Ga. App. 724 (2011), in which a
multiple order violations are not required to
find a pattern of intimidation and
harassment, but rather that a single violation
must be part of a pattern of harassment and
intimidation, as determined by the jury when
considering a variety of factors, such as the
prior history between the parties, Herbert v.
State, 311 Ga. App. 396 (2011) in which
only one contact was sufficient to prove
violation of the order, Hervey v. State, 308
Ga. App. 290 (2011), in which an extensive
history of harassment and intimidation can
be considered, as well as repeated, Oliver v.
State 2014 WL 278455 (2014), in which a
single violation of the order is prohibited, if
the violation is part of a pattern of
harassment and intimidation, and the jury
can consider additional factors, including the
prior history between the parties.
Both of these statutes punish violations not just of
civil stalking orders, but also of other types of
orders, including:
a.
a bond to keep the peace.
b.
a temporary restraining order, and other
forms of temporary or permanent equitable
injunctions.
c.
a family violence order.
d.
an employer protective order.
e.
conditions of pre-trial release, probation, or
parole.

4

CHAPTER 4 – CRIMINAL LAW
4
CRIMINAL LAW.
Until the latter part of the 20th Century, domestic violence crimes in Georgia were
typically treated the same as any other crimes of violence and, if treated
differently at all, were usually treated as being of less consequence. Today,
however, in recognition of the special societal harm posed by such crimes, many
Georgia statutes have been enacted that create special categories of domestic
violence crime with increased penalties.
4.1

Family Violence Act
The Family Violence Act, O.C.G.A. § 19-13-1 et seq., is principally
designed to afford civil remedies, e.g., temporary protective orders, to
victims of domestic abuse. However, because this Act defines “family
violence” by making reference to codified criminal offenses, it is
summarized here.
4.1.1

4.1.2

4.1.3

Applicable predicate acts. O.C.G.A. § 19-13-1 provides that the
following acts may constitute “acts of family violence”:
A.
Any felony; or
B.
Commission of offenses of battery, simple battery, simple
assault, assault, stalking, criminal damage to property,
unlawful restraint, or criminal trespass.
Inapplicable predicate acts. O.C.G.A. § 19-13-1 provides that
the term "family violence" shall not be deemed to include
reasonable discipline administered by a parent to a child in the
form of corporal punishment, restraint, or detention.
A.
Buchheit v. Stinson, 260 Ga. App. 450, 455-456 (2003)
(mother’s action of slapping minor child in response to
child’s disrespectful behavior constituted reasonable
discipline administered in form of corporal punishment).
B.
Bowers v. State, 241 Ga. App. 122, 123 (1999) (beating
child with a metal-studded leather belt was not reasonable
parental discipline).
C.
Bearden v. State, 163 Ga. App. 434 (1982) (defendant’s
requested jury charge on “justification for reasonable
discipline” properly denied where evidence showed that
defendant’s 5-year old stepdaughter had visible bruises on
75% of her face and on 25% of her body).
D.
Taylor v. State, 155 Ga. App. 11 (1980) (pouring gasoline
on child and threatening her with a lighted match was not
reasonable parental discipline).
Applicable offender/victim relationships. O.C.G.A. § 19-13-1
provides that one of the following relationships must exist before
an offense will qualify as an act of family violence:
A.
past or present spouses,

4:1

B.
C.
D.
E.
F.

4.2

persons who are parents of the same child,
parents and children,
stepparents and stepchildren,
foster parents and foster children, or
other persons living or formerly living in the same
household.
1.
Gillespie v. State, 280 Ga. App. 243, 245 (2006) (if
a pregnancy results from a single indiscretion
between veritable strangers, the mere fact of
pregnancy is not sufficient to create a "family"
relationship for purposes of enhanced punishment
for “family violence”).
2.
Allen v. Clerk, 273 Ga. App. 896 (2005) (trial court
held that an uncle who has never lived in the same
household as the victim does not meet the criteria
for the applicability of the Act).
3.
State v. Barnett, 268 Ga. App. 900, 901 (2004)
(defendant sufficiently apprised of a “family
violence” charge when aggravated assault
indictment alleged that defendant and victim were
“parents of the same child”).
4.
Holland v. State, 239 Ga. App. 436 (1999)
(upholding conviction for family violence battery
when victim was a “female friend with whom [the
defendant] was residing”).
5.
McCracken v. State, 224 Ga. App. 356 (1997)
(victim was defendant’s live-in girlfriend).

Domestic Violence Crimes
The following is a partial list of criminal offenses that may constitute
“acts of family violence” under the Family Violence Act, O.C.G.A. § 1913-1, et seq. Moreover, if such crimes involve persons who are related
and/or reside or formerly resided in the same household, enhanced
criminal penalties may be available. (See Section 4.3., Domestic Violence
Sentences below.)
4.2.1

4:2

Felony Crimes (O.C.G.A. § 19-13-1(1)). Below is a partial list of
felony offenses that would qualify as “acts of family violence” if
the qualifying relationship between the offender and the victim
exists under O.C.G.A. § 19-13-1.
A.
Crimes Against Persons (Title 16, Article 5)
1.
Murder, Felony Murder (O.C.G.A. § 16-5-1).
a.
Bridges v. State, 279 Ga. 351, 352 (2005)
(motivated to collect insurance benefits and
to reunite with his first wife, defendant
murdered his wife by stabbing and severely
beating her).

b.

2.

3.

4.

5.

Lewis v. State, 255 Ga. 101 (1985) (police
had probable cause to arrest mother for
malice murder of her ten-month-old infant
daughter based on information that child
died from severe abuse and pneumonia
secondary to malnutrition from weeks or
months of neglect, that mother had bound
infant with belts, taped her eyes and mouth
shut, and whipped the baby with a belt).
Voluntary Manslaughter (O.C.G.A. § 16-5-2).
a.
Fuller v. State, 265 Ga. App. 271, 272
(2004) (defendant became enraged and shot
his wife while the two were engaged in a
domestic argument over his handling of the
family’s money and his cocaine habit).
Involuntary Manslaughter (O.C.G.A. § 16-5-3).
a.
Early v. State, 170 Ga. App. 158, 163-164
(1984) (defendant’s conviction for
involuntary manslaughter upheld where his
act of beating his wife with a piece of wood
materially contributed to her death).
Aggravated Assault (O.C.G.A. § 16-5-21).
a.
Lord v. State, 297 Ga. App. 88
(2009)(defendant punched and bashed his
live-in girlfriend’s head into a car dashboard
and shoved a curling iron down her throat).
b.
Gilbert v. State, 209 Ga. App. 483, 484
(1993) (defendant drove his wife into the
woods, ordered her at knife-point to exit the
vehicle and remove her clothes, then chased
her through the woods).
c.
HB 911, passed in 2014, adds specific
language on strangulation to O.C.G.A. § 165-21. 12(a) provides that, “As used in this
Code section, the term ‘strangulation’ means
impeding the normal breathing or circulation
of blood of another person by applying
pressure to the throat or neck of such person
or by obstructing the nose or mouth of such
person.” 12(b)(3) states that a person
commits the offense of aggravated assault
by assaulting, “With any object, device, or
instrument which, when used offensively
against a person, is likely to or actually does
result in strangulation.”
Aggravated Battery (O.C.G.A. § 16-5-24).

4:3

a.

6.

7.

8.

4:4

Biggins v. State, 299 Ga. App. 554 (2009)
(defendant srtuck live-in girlfriend’s ear
with a stereo speaker causing her to suffer at
least temporary hearing loss).
b.
Johnson v. State, 260 Ga. App. 413, 415
(2003) (defendant grabbed and twisted his
estranged wife’s wrist rendering it useless
for several weeks and punched and broke
her nose).
Kidnapping (O.C.G.A. § 16-5-40).
a.
Dixon v. State, 303 Ga. App. 517 (2010)
(asportation element of crime of kidnapping
was proven where the victim was halfway
out the door of a hotel room when the
defendant pulled her back into the room, and
that action was sufficiently independent
from the subsequent aggravated assault and
rape against the victim)
b.
Hargrove v. State, 299 Ga. App. 27 (2009)
(asportation element of crime of kidnapping
was not proven where defendant’s dragging
of his live-in girlfriend from one room of
duplex to another was not sufficiently
independent of his DV aggravated battery
upon her); see also Horne v. State, 298 Ga.
App. 601 (2009).
c.
Carter v. State, 268 Ga. App. 688, 690
(2004) (defendant forced his wife into a car
against her will and backhanded her several
times leaving her face swollen and bruised).
False Imprisonment (O.C.G.A. § 16-5-41). False
Imprisonment, a felony, involves the unlawful
restraint of another in violation of his or her
personal liberty. (See Section 4.1.1.B., above Unlawful Restraint).
a.
Pitts v. State, 272 Ga. App. 182, 187 (2005),
aff’d 280 Ga. 288 (2006) (defendant held
his wife down on a bed as she screamed and
blocked her bedroom door preventing her
escape).
Reckless Conduct (HIV infected persons)
(O.C.G.A. § 16-5-60(c)).
a.
Burk v. State, 223 Ga. App. 530, 530-531
(1996) (conviction for the lesser-included
offense of reckless endangerment sustained
in this non-domestic violence case).

9.

10.

11.

Cruelty to Children (O.C.G.A. § 16-5-70).
a.
Yearwood v. State, 297 Ga. App. 633 (2009)
(mother’s spanking of two-year old child
resulted in multiple bruises and a skull
fracture).
b.
Bowers v. State, 241 Ga. App. 122, 123
(1999) (defendant beat his daughter with a
metal-studded leather belt).
Stalking (2nd or subsequent offense) (O.C.G.A. §
16-5-90(c)). O.C.G.A. § 16-5-90(a)(1) provides
that a person commits stalking when he “contacts
another person … for the purpose of harassing and
intimidating the other person.”
a.
Harassing and Intimidating. O.C.G.A. §
16-5-90(a)(1) provides that “harassing and
intimidating” means conduct which causes
“emotional distress by placing such person
in reasonable fear for such person’s safety or
the safety of a member of his or her
immediate family.” The statute does not
require actual physical injury or even an
overt threat of physical injury.
b.
Reasonable fear: Studies show that some
stalking victims may deny the existence of
fear as a way of coping with the danger and
lack of control they experience. (Herman,
1992) To reveal such hidden fears, a victim
might be asked whether she believes that the
defendant is capable of hurting her or her
family. (Hunter, 2002)
Aggravated Stalking (O.C.G.A. § 16-5-91).
O.C.G.A. § 16-5-91(a) provides that a person
commits aggravating stalking when he “follows,
places under surveillance, or contacts another
person …without the consent of the other person for
the purpose of harassing and intimidating the other
person” in violation of one of the following:
a.
a bond to keep the peace;
b.
a temporary restraining order;
c.
a temporary protective order;
d.
a permanent restraining order;
e.
a permanent protective order;
f.
a preliminary injunction;
g.
a good behavior bond;
h.
a permanent injunction;
i.
a condition of pretrial release;

4:5

j.
k.

4:6

a condition of probation; or
a condition of parole.
(1) Gates v. State, 322 Ga. App. 383 (2013)
(evidence was sufficient to establish
that the defendant’s actions placed
the victim in reasonable fear for her
safety, even though there had been
prior consensual contact between the
parties, because the victim did not
consent to the contact that comprised
aggravated stalking).
(2)Louisyr v. State, 307 Ga. App. 724
(2011) (A single violation of a
protective order can be sufficient to
prove aggravated stalking if the
single violation is part of a pattern of
behavior. The jury can consider a
number of factors, including prior
history between the parties, and the
defendant’s attempts to contact or
communicate with the victim.)
(3)State v. Burke, 287 Ga. 377 (2010)(A
single violation of a protective order
is not sufficient to prove aggravated
stalking. The violation must be
without the consent of the other
person, for the purpose of harassing
and intimidating, which is
established by a pattern of behavior.)
(4)Wright v. State, 292 Ga. App. 673
(2008)(evidence failed to establish
that defendant’s actions placed his
ex-wife in reasonable fear for her
safety).
(i)
Note: “Harrassing and
intimidating” has the same
meaning as in O.C.G.A. §
16-5-90(a)(1)(misdemeanor
stalking). Wright, supra at
676.
(5)
Holmes v. State, 291 Ga. App. 196
(2008)(defendant violated a family
violence protective order by making
repeated phone calls to and sending
emails to his estranged wife causing
her to fear for her safety).

(6)

B.

Newsome v. State, 289 Ga. App. 590
(2008)(defendant violated family
violence protection order by
contacting his estranged wife and
their infant child at their home and
wounding both with a firearm).
(7)
Bragg v. State, 285 Ga. App. 408
(2007)(despite a no contact provision
in his probated sentence for family
violence battery, husband not guilty
of aggravated stalking when she
arranged and consented to their
subsequent meeting).
(8)
Ford v. State, 283 Ga. App. 460, 461
(2007) (by confronting his wife and
her male companion with a gun in a
public park, defendant violated a
temporary protective order which
enjoined him from approaching
within 100 yards of his wife).
(9)
Revere v. State, 277 Ga. App. 393
(2006) (victim's previous consent to
contact after a no contact order was
issued does not alter the fact that, on
this occasion, she did not consent).
12.
Cruelty to a Person 65 Years of Age or Older
(O.C.G.A. § 16-5-100).
a.
Wood v. State, 279 Ga. 667, 668-670 (2005)
(defendant and his girlfriend removed her
mother from nursing home in order to
receive victim’s social security checks and
their inattentive care led to her death).
Sexual Crimes (Title 16, Article 6).
1.
Rape (O.C.G.A. § 16-6-1). O.C.G.A. § 16-6-1(a)
provides that “[t]he fact that the person allegedly
raped is the wife of the defendant shall not be a
defense to a charge of rape.”
a.
Childs v. State, 257 Ga. 243, 252 (1987)
(jury was authorized to conclude that
defendant raped his wife despite his
contention that the intercourse was
consensual).
b.
Warren v. State, 255 Ga. 151, 156 (1985)
(there is no “implicit marital exclusion”
under Georgia’s rape statute that would

4:7

C.

4:8

preclude prosecution of a husband for raping
his wife).
2.
Aggravated Sodomy (O.C.G.A. § 16-6-2).
O.C.G.A. § 16-6-2(a) provides that “[t]he fact that
the person allegedly sodomized is the spouse of a
defendant shall not be a defense to a charge of
aggravated sodomy.”
a.
Warren v. State, 255 Ga. 151, 157 (1985)
(there is no “implicit marital exclusion”
under Georgia’s aggravated sodomy statute
that would preclude prosecution of a
husband from forcibly sodomizing his wife).
3.
Child Molestation (O.C.G.A. § 16-6-4(a)).
a.
Perdue v. State, 250 Ga. App. 201 (2001)
(defendant routinely entered his
stepdaughter’s room at night where he
fondled and engaged in sexual intercourse
with her).
4.
Aggravated Child Molestation (O.C.G.A. § 16-64(c)).
a.
Perdue v. State, 250 Ga. App. 201 (2001)
(defendant routinely entered his
stepdaughter’s room at night where he
engaged in mutual oral sodomy with her).
5.
Incest (O.C.G.A. § 16-6-22).
a.
Benton v. State, 265 Ga. 648, 648-649
(1995) (rejecting defendant’s claim of a
constitutional right to have intercourse with
a non-blood relative where defendant
repeatedly engaged in consensual sexual
intercourse with his adult stepdaughter).
6.
Aggravated Sexual Battery (O.C.G.A. § 16-622.2).
a.
Temple v. State, 238 Ga. App. 146, 147
(1999) (defendant beat his wife in the head
with a gun before sexually penetrating her
with the barrel of the gun).
Property Crimes (Title 16, Article 7).
1.
Criminal Damage to Property, 2nd Degree
(O.C.G.A. § 16-7-23). Criminal Damage to
Property, a felony, involves the intentional
damaging of another’s property without consent in
an amount greater than $500. (See Section 4.1.1.B.
above - Criminal Damage to Property.)
a.
Gooch v. State, 289 Ga. App. 74(1)
(2007)(citing Ginn v. State, 251 Ga. App.

4.2.2

159(2)(2001))(suggesting that “property of
another” includes marital or family property
jointly owned by the defendant and his
spouse).
b.
Johnson v. State, 260 Ga. App. 413, 415
(2003) (defendant keyed his estranged
wife’s car causing damage in excess of
$500).
2.
Arson, 1st, 2nd, 3rd Degrees (O.C.G.A. § 16-7-60,
61, and 63).
a.
Senior v. State, 273 Ga. App. 383 (2005)
(defendant set his girlfriend’s car on fire
following an argument).
b.
Lathan v. State, 241 Ga. App. 750 (1999)
(defendant set fire to a house owned by his
ex-wife after attempts at reconciliation with
her had failed).
D.
Offenses Against Public Order (Title 16, Article 11).
1.
Terroristic Threats and Acts (O.C.G.A. § 16-1137).
a.
Mullins v. State, 298 Ga. App. 368
(2009)(victim’s claimed lack of memory at
trial regarding the defendant’s alleged
threats no obstacle to conviction because
there is “no requirement that the victim
testify for there to be sufficient evidence to
sustain a conviction for terroristic threats”).
b.
Johnson v. State, 260 Ga. App. 413, 416
(2003) (defendant’s words to his estranged
wife that she "didn’t have long to live" could
reasonably be inferred as a threat to kill).
Misdemeanor Crimes (O.C.G.A. § 19-13-1(2)). Below is a list
of misdemeanor offenses, set forth in O.C.G.A. § 19-13-1, that
qualify as “acts of family violence”, if the qualifying relationship
between the offender and the victim exists under O.C.G.A. § 1913-1.
A.
Crimes Against Persons (Title 16, Article 5).
1.
Simple Assault (O.C.G.A. § 16-5-20).
a.
Bearden v. State, 291 Ga. App. 805
(2008)(defendant’s violent outburst placed
his daughter in reasonable fear of injury).
b.
Johnson v. State, 260 Ga. App. 413, 414-415
(2003) (defendant’s aggressive driving
toward his estranged wife’s car held
sufficient).
2.
Simple Battery (O.C.G.A. § 16-5-23).

4:9

a.

3.

4:10

Pitts v. State, 272 Ga. App. 182, 187-188
(2005), aff’d 280 Ga. 288 (2006) (officer’s
testimony that he saw defendant holding his
wife down on a bed while she screamed
sufficient to establish simple battery and
false imprisonment, even without the
victim’s testimony).
b.
Shaw v. State, 247 Ga. App. 867, 871 (2001)
(testimony that defendant grabbed victim by
throat and shoved her against the wall,
coupled with officer’s observation of red
marks on her neck, sufficient to uphold
simple battery verdict).
c.
Watkins v. State, 183 Ga. App. 778 (1987)
(victim’s statement that defendant beat his
wife with a chair, threatened her with a gun,
and stabbed her with a pair of scissors, plus
the presence of a stab wound on the victim's
back, the presence of several weapons, and
the disordered condition of the scene
provided officers with probable cause to
believe that an act of family violence had
occurred).
Battery (O.C.G.A. § 16-5-23.1).
a.
Thompson v. State, 291 Ga. App. 355
(2008)(responding officer found victim
bleeding profusely from her mouth and had
one eye swollen shut).
b.
Simmons v. State, 285 Ga. App. 129
(2007)(defendant hit his live-in girlfriend in
the head with his fists causing her head to
bleed).
c.
Southern v. State, 269 Ga. App. 556 (2004)
(defendant hit his girlfriend, with whom he
had two children, leaving her with a bloody
nose).
d.
Rigo v. State, 269 Ga. App. 383, 384 (2004)
(defendant bruised his wife’s throat by
strangling her).
(1)
Lee Wilbur, et. al., “Survey Results
Of Women Who Have Been
Strangled While In An Abusive
Relationship,” Journal of Emergency
Medicine, Vol. 21, no. 3 (Oct.
2001) (study found that strangulation
as a method of abuse is common in

4.

women seeking safe shelter and/or
medical assistance and noted that it
“occurs late in the abusive
relationship; thus, women presenting
with complaints consistent with
strangulation probably represent
women at higher risk for major
morbidity or mortality.”).
(2)
Unfortunately, 50% of victims who
were strangled and survived had no
visible markings on the neck and
35% had only very minor injuries
thus making physical evidence
virtually non-existent (Strack, et al,
2003). In light of this new medical
information, five states have now
made strangulation a felony. (See
Appendix B – Assessing for
Lethality)
e.
Spinner v. State, 263 Ga. App. 802 (2003)
(defendant placed his hands around his
wife’s neck and began to choke her).
f.
Johnson v. State, 260 Ga. App. 413, 414
(2003) (defendant struck, choked, and threw
his wife against a wall leaving visible
scrapes and bruises).
g.
Cobble v. State, 259 Ga. App. 236, 237
(2003) (defendant attacked his mother with
car keys, pulled her hair out and left her
scalp bloodied).
h.
Cox v. State, 243 Ga. App. 582 (2000)
(defendant’s act of splashing beer on his
estranged wife’s clothes insufficient to
satisfy element of “substantial physical harm
or visible harm”).
i.
Bowers v. State, 241 Ga. App. 122, 123
(1999) (defendant committed family
violence battery when he struck and bruised
his 12-year old son’s face).
Stalking (1st offense) (O.C.G.A. § 16-5-90(a)).
a.
Anderson v. Deas, 273 Ga. App. 770 (2005)
(“As used in the [Family Violence Act], the
term ‘family violence’ . . . include[s]
stalking).
b.
Johnson v. State, 260 Ga. App. 413, 414
(2003) (defendant appeared uninvited and

4:11

4.2.3

harassed his estranged wife at her doctor’s
office).
c.
See Section 4.2.1.A.10- Stalking above, for
additional discussion.
B.
Property Crimes (Title 16, Article 7).
1.
Criminal Trespass (O.C.G.A. § 16-7-21).
Criminal Trespass, a misdemeanor, involves the
intentional damaging of another’s property without
consent in an amount equal to or less than $500, or
the entry without authority upon the property of
another. (See Section 4.1.1.B. above - Criminal
Trespass).
a.
Ginn v. State, 251 Ga. App. 159(2)(2001)
(defendant guilty of criminal trespass when
he destroyed a computer keyboard during an
argument with his wife even if the keyboard
was their joint marital property).
b.
Cox v. State, 243 Ga. App. 582, 582-583
(2000) (defendant committed criminal
trespass when he damaged an exterior light
fixture belonging to his estranged wife).
Miscellaneous Crimes / Civil Contempt of Court.
A.
Violation of Family Violence Order (O.C.G.A. § 16-595). The crime created by this code section can be viewed
as an alternative to a charge of stalking (O.C.G.A. § 16-590) or aggravated stalking (O.C.G.A. § 16-5-91) which,
unlike this crime, each contain an element requiring that the
prohibited contact be “without the consent of the other
person for the purpose of harassing and intimidating the
other person.” This section criminalizes acts (such as no
contact) which previously may only have been redressed
through a civil contempt action brought by the domestic
violence victim.
O.C.G.A. § 16-5-95(a)(1), defines a civil family violence
order as “any temporary protective order or permanent
protective order issued pursuant to Article 1 of Chapter 13
of Title 19.”Section (a)(2) defines a criminal family
violence order as “any order of pretrial release issued as a
result of an arrest for an act of family violence;” or “any
order of probation issued as a result of a conviction or plea
of guilty, nolo contendere, or first offender to an act of
family violence.”
O.C.G.A. § 16-5-95(b) provides that “A person commits
the offense of violating a civil family violence order or
criminal family violence order when such person

4:12

knowingly and in a nonviolent manner violates the terms of
such order issued against that personwhich (1) Excludes,
evicts or excludes and evicts the person from a residence or
household; (2) Directs the person to stay away from a
residence, workplace or school; (3) Restrains the person
from approaching within a specified distance or another
person; or (4) Restricts the person from having any contact,
direct or indirect, by telephone, pager, facsimile, email, or
any other means of communication with another person,
except as specified in such order.”
The expansion of this code section to include criminal
family violence orders occurred in 2013, and streamlines
the process for holding an offender accountable for such
violations. Rather than the prosecuting attorney filing a
motion to revoke bond or probation, a law enforcement
officer may now make an arrest or present a warrant to a
judge for arrest at a later time.
Keeping track of active conditions of bond orders, in
particular, may pose a challenge as no centralized system
comparable to the TPO registry exists for such conditions.
Communities must devise their own systems to ensure that
law enforcement and courts have access to accurate
information.

B.

C.

O.C.G.A. § 16-5-95(d) provides that “[n]othing contained
in this Code section shall prohibit a prosecution for the
offense of stalking or aggravated stalking that arose out
of the same course of conduct; provided, however, that, for
purposes of sentencing, a violation of this Code section
shall be merged with a violation of any provision of Code
Section 16-5-90 [Stalking] or 16-5-91 [Aggravated
Stalking] that arose out of the same course of conduct.”
1.
Newsome v. State, 296 Ga. App. 490
(2009)(accusation charging this offense must set
forth the terms of the order alleged to have been
violated).
Disclosure of Location of Family Violence Shelter
(O.C.G.A. § 19-13-23). This code section provides that
“[a]ny person who knowingly …discloses the location of a
family violence shelter is guilty of a misdemeanor.”
Disclosure of Family Violence and Stalking Protective
Order Registry Information (O.C.G.A. § 19-13-55).
O.C.G.A 19-13-55 provides that “[a]ny individual,
agency, or court which obtains information from the

4:13

D.

4.3

registry shall keep such information or parts thereof
confidential. …Violation of this Code section shall be a
misdemeanor.”
Contempt of Court (O.C.G.A. § 19-13-6). This code
section recognizes civil contempt as an alternative to
criminal prosecution under O.C.G.A. § 16-5-95. O.C.G.A.
§ 19-13-6 provides that “[a] violation of an order issued
pursuant to [the Family Violence Act] may be punished by
an action for contempt or criminally punished as provided
in Article 7 of Chapter 5 of Title 16.”
1.
Tanks v. State, 292 Ga. App. 177 (2008)(nonsummary criminal contempt proceedings can trigger
the Fifth Amendment's double jeopardy bar to
subsequent prosecution predicated on the same act
allegedly violating a protective order).
2.
Schmidt v. Schmidt, 270 Ga. 461, 463 (1999) (court
must apply the reasonable doubt standard of proof
to violations of orders under the Family Violence
Act, rather than the preponderance standard, when
imposing unconditional incarceration as punishment
for criminal contempt).
3.
Salter v. Greene, 226 Ga. App. 384, 386 (1997) (a
wife cannot be held in contempt for voluntarily
contacting her husband merely because his bond
condition barred him from having contact with her).
4.
Kinney v. State, 223 Ga. App. 418, 420-421 (1996)
(the state may not prosecute a defendant for
aggravated stalking based upon the same set of facts
previously used to prosecute the same defendant for
a violation of a domestic violence order).

Domestic Violence Sentences
In special recognition of the societal harm caused by domestic violence,
the legislature has adopted a number of sentencing enhancement
provisions applicable to offenders convicted of domestic violence
offenses. These provisions are summarized below.
4.3.1

4:14

Domestic Violence Sentencing – First Offenses.
A.
Simple Assault. O.C.G.A. § 16-5-20(d) provides that “[i]f
the offense of simple assault is committed between past or
present spouses, persons who are parents of the same child,
parents and children, stepparents and stepchildren, foster
parents and foster children, or other persons excluding
siblings living or formerly living in the same household, the
defendant shall be punished for a misdemeanor of a high
and aggravated nature. In no event shall this subsection
be applicable to corporal punishment administered by a

B.

C.

D.

parent or guardian to a child or administered by a person
acting in loco parentis.” (Note: Siblings are not excluded
from the definition of “family violence” set forth in § 1913-1.)
Aggravated Assault. O.C.G.A. § 16-5-21(j) provides that
“[i]f the offense of aggravated assault is committed
between past or present spouses, persons who are parents of
the same child, parents and children, stepparents and
stepchildren, foster parents and foster children, or other
persons excluding siblings living or formerly living in the
same household, the defendant shall be punished by
imprisonment for not less than three nor more than 20
years.” (Note: Siblings are not excluded from the
definition of “family violence” set forth in § 19-13-1.)
Simple Battery. O.C.G.A. § 16-5-23(f) provides that “[i]f
the offense of simple battery is committed between past or
present spouses, persons who are parents of the same child,
parents and children, stepparents and stepchildren, foster
parents and foster children, or other persons excluding
siblings living or formerly living in the same household, the
defendant shall be punished for a misdemeanor of a high
and aggravated nature. In no event shall this subsection
be applicable to corporal punishment administered by a
parent or guardian to a child or administered by a person
acting in loco parentis.” (Note: Siblings are not excluded
from the definition of “family violence” set forth in § 1913-1.)
Battery. O.C.G.A. § 16-5-23.1(f) provides that “[i]f the
offense of battery is committed between past or present
spouses, persons who are parents of the same child, parents
and children, stepparents and stepchildren, foster parents
and foster children, or other persons living or formerly
living in the same household, then such offense shall
constitute the offense of family violence battery and shall
be punished as follows:
Upon a first conviction of family violence battery, the
defendant shall be guilty of and punished for a
misdemeanor.”
1.
The misdemeanor penalty for a first offense family
violence battery seems anomalous in light of the
stiffer penalty (misdemeanor of a high and
aggravated nature) for a first time simple assault or
simple battery offense involving similarly situated
persons. This may be the result of a legislative
oversight.

4:15

2.

4.3.2

The offense of family violence battery includes
siblings among its possible victims whereas siblings
as victims are specifically excluded from the
definition of the lesser offenses of simple assault
and simple battery and the greater offenses of
aggravated assault and aggravated battery. This
may also be the result of a legislative oversight.
3.
See Section 4.2.2.A.3 -Battery, above, for additional
discussion.
E.
Aggravated Battery. O.C.G.A. § 16-5-24(h) provides
that “[i]f the offense of aggravated battery is committed
between past or present spouses, persons who are parents of
the same child, parents and children, stepparents and
stepchildren, foster parents and foster children, or other
persons excluding siblings living or formerly living in the
same household, the defendant shall be punished by
imprisonment for not less than three nor more than 20
years.” (Note: Siblings are not excluded from the
definition of “family violence” set forth in § 19-13-1.)
Domestic Violence Sentencing - Second or Subsequent
Offenses.
A.
Battery. O.C.G.A. § 16-5-23.1(f) provides that “[i]f the
offense of battery is committed between past or present
spouses, persons who are parents of the same child, parents
and children, stepparents and stepchildren, foster parents
and foster children, or other persons living or formerly
living in the same household, then such offense shall
constitute the offense of family violence battery and shall
be punished as follows:
Upon a second or subsequent conviction of family violence
battery against the same or another victim, the defendant
shall be guilty of a felony and shall be punished by
imprisonment for not less than one nor more than five
years. In no event shall this subsection be applicable to
reasonable corporal punishment administered by parent to
child.”
1.
Spinner v. State, 263 Ga. App. 802, 803-804 (2003)
(a nolo contendere plea to a prior battery involving
a family member can be considered a prior
conviction for purposes of O.C.G.A. § 16-523.1(f)(2) which simply enhances the penalty for
the newly-committed act).
2.
State v. Dean, 235 Ga. App. 847, 847-848 (1998)
(defendant’s prior battery conviction involving his
wife could serve as basis for enhanced sentence

4:16

4.3.3

under O.C.G.A. § 16-5-23.1(f)(2) for second such
conviction despite fact that first conviction predated
the enactment of that subsection; not ex post facto
because penalty for first conviction not increased).
3.
Note: The offense of family violence battery
includes siblings among its possible victims
whereas siblings as victims are specifically
excluded from the definition of the lesser offenses
of simple assault and simple battery and the greater
offenses of aggravated assault and aggravated
battery. This may be the result of a legislative
oversight.
Proof of Prior Family Violence Act Conviction(s).
A.
Apprendi v. New Jersey, 530 U.S. 466 (2000) (a criminal
defendant’s Sixth Amendment right to a jury trial, applied
to the states through the Due Process clause of the
Fourteenth Amendment, requires that any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum for that offense, other than the fact of a
prior conviction, must be submitted to a jury and proved
beyond a reasonable doubt).
B.
The Apprendi rule seems to require the State to both allege
and prove the familial relationship between the victim and
defendant in order to authorize a sentencing enhancement
for a first offense involving family violence. The
sentencing judge is not permitted to make that factual
finding on his own.
1.
Grogan v. State, 297 Ga. App. 251 (2009)(a
defendant may not wait until after his second
conviction for FVB to challenge on direct appeal
the validity of this recidivist felony sentence based
upon his first conviction for FVB).
C.
The Apprendi rule does not seem to require the State to
allege or prove to the trier of fact the existence of a first
offense in order to authorize a sentencing enhancement for
a second offense involving family violence.
1.
Grogan v. State, 297 Ga. App. 251 (2009)(trial
court properly relied on defendant’s prior
conviction for FVB in sentencing defendant to
felony recidivist punishment).
2.
Spinner v. State, 263 Ga. App. 802, 803-804 (2003)
(O.C.G.A. § 16-5-23.1(f) is a recidivist statute that
simply enhances the punishment for repeat
offenders of family violence battery, thus proof of a
prior conviction is not an element of the crime of
felony family violence battery).

4:17

3.

4.3.4

4:18

State v. Dean, 235 Ga. App. 847, 847-848 (1998)
(defendant’s prior conviction for battery against
wife properly served as basis for enhanced sentence
under O.C.G.A. § 16-5-23.1(f)(2)).
Special Conditions of Probation.
A..
Psychological evaluation and treatment. O.C.G.A. § 165-90(d) provides that “[b]efore sentencing a defendant for
any conviction of stalking under Code Section 16-5-90 or
aggravated stalking under Code Section 16-5-91, the
sentencing judge may require psychological evaluation of
the offender…. At the time of sentencing, the judge is
authorized to …require psychological treatment of the
offender as a part of the sentence, or as a condition for
suspension or stay of sentence, or for probation.”
1.
Benton v. State, 256 Ga. App. 620, 623(fn.9) (2002)
(trial court did not abuse its discretion in imposing
family counseling as a condition of defendant’s
probation following his conviction for stalking his
own daughter).
B.
Permanent restraining orders. O.C.G.A. § 16-5-90(d)
provides that “[a]t the time of sentencing [for any
conviction of stalking under Code Section 16-5-90 or
aggravated stalking under Code Section 16-5-91], the
judge is authorized to issue a permanent restraining
order against the offender to protect the person stalked
and the members of such person’s immediate family.”
C.
No contact with victim/Stay away provisions.
1.
Talley v. State, 269 Ga. App. 712, 714-715 (2004)
(upheld condition of probation barring defendant
from having contact with his ex-wives and his own
children after defendant used threats to kill his
children to manipulate his ex-wives).
2.
Benton v. State, 256 Ga. App. 620, 623 (2002) (trial
court did not abuse its discretion in restraining
defendant from contacting his daughter and her
family following his stalking conviction based on
“ample basis for the victim’s concern”).
D.
Mandatory family violence intervention programs.
O.C.G.A. § 19-13-16(a) provides that “[a] court, in
addition to imposing any penalty provided by law, when
sentencing a defendant or revoking a defendant’s
probation for an offense involving family violence, or
when imposing a protective order against family
violence, shall order the defendant to participate in a family
violence intervention program, whether a certified program
pursuant to this article or a program operated pursuant to

4.3.5

4.4

Code Section 19-13-15, unless the court determines and
states on the record why participation in such a program is
not appropriate.”
1.
See Appendix G – Differences Between Anger
Management and Family Violence Intervention
Programs.
Additional Consequences of Domestic Violence Sentencing.
A.
Felony Domestic Violence Offenses. A person convicted
of any felony offense, including domestic violence
offenses, is prohibited by law from receiving, possessing,
or transporting any firearm. O.C.G.A. §16-11-131(b).
B.
Misdemeanor Domestic Violence Offenses. Federal law
(Gun Control Act of 1968, as amended) prohibits persons
convicted of certain qualifying domestic violence
misdemeanor offenses from receiving or possessing any
firearms. 18 U.S.C. 922(g)(9). See
http://www.atf.gov/firearms/faq/misdemeanor-domesticviolence.html for a more detailed definition of these
qualifying domestic violence misdemeanors.
1.
Note: Sentencing judges should advise persons
being sentenced for domestic violence
misdemeanors that federal law may prohibit such
persons from thereafter receiving or possessing any
firearms. [This notification is a requirement for
those states receiving federal funding from the US
Department of Justice, Violence Against Women
Act STOP grant program.]

Domestic Violence Arrests
It was formerly the law in Georgia that a police officer could not make an
arrest for a misdemeanor offense unless that offense occurred in the
officer’s presence. When responding to domestic violence calls, this often
resulted in officers being unable to make contemporaneous arrests. If
victims of domestic violence desired to prosecute their abusers, they were
told that they would have to swear out their own criminal warrant. To
remedy this situation, Georgia’s arrest statute was amended in 1988 to
permit police officers to make family violence arrests based upon probable
cause, whether or not the officer personally witnessed the crime.
4.4.1

Powers of Arrest, in General (O.C.G.A. § 17-4-20). O.C.G.A. §
17-4-20 delineates circumstances justifying an arrest by a law
enforcement officer under Georgia law.
A.
Hight v. State, 293 Ga. App. 254(1)(2008) (any arrest that
is constitutional under federal law is also permissible under
Georgia law, even if not specifically authorized by this
code section); Quick v. State, 166 Ga. App. 492, 494
(1983)(same).

4:19

4.4.2

4.4.3

4.4.4

4.4.5

4:20

Authority to arrest for family violence offenses. O.C.G.A. §
17-4-20(a) provides that an officer may make an arrest with or
without a warrant “if the officer has probable cause to believe that
an act of family violence, as defined in Code Section 19-13-1, has
been committed.”
A.
Wright v. State, 276 Ga. 454, 460 (2003) (arrest without
warrant justified following the mysterious disappearance of
defendant’s estranged wife).
B.
McCracken v. State, 224 Ga. App. 356, 358 (1997)
(warrantless arrest properly based upon victim’s on-thescene accusation that her former boyfriend had beaten her
and officer’s observation of visible bodily harm,
specifically victim’s eye which was almost completely
swollen shut).
Victim need not press charges. O.C.G.A. § 17-4-20.1(a)
provides that “[w]henever a law enforcement officer responds to
an incident in which an act of family violence, as defined in Code
Section 19-13-1, has been committed, the officer shall not base the
decision of whether to arrest and charge a person on the specific
consent of the victim….”
A.
Shaw v. State, 247 Ga. App. 867, 867-868 (2001) (police
authorized to make warrantless arrest despite visibly
injured victim’s expressed desire not to prosecute).
B.
Holland v. State, 239 Ga. App. 436, 436-437 (1999)
(despite victim’s claim that the defendant never struck her,
evidence supported the arrest and subsequent conviction of
defendant based on eyewitness accounts of defendant’s
attack upon her).
Officer shall not threaten to arrest victim. O.C.G.A. § 17-420.1(a) provides that “[n]o officer investigating an incident of
family violence shall threaten, suggest, or otherwise indicate the
arrest of all parties for the purpose of discouraging requests for law
enforcement intervention.”
A.
Harrison v. State, 238 Ga. App. 485 (1999) (responding
officer concluded that probable cause existed to arrest both
the husband and the wife for simple battery committed
upon one another).
Discretion to arrest the “primary aggressor”. O.C.G.A. § 174-20.1(b) provides that “[w]here complaints of family violence are
received from two or more opposing parties, the officer shall
evaluate each complaint separately to attempt to determine who
was the primary aggressor. If the officer determines that one of
the parties was the primary physical aggressor, the officer shall not
be required to arrest any other person believed to have committed
an act of family violence during the incident. In determining
whether a person is a primary physical aggressor, an officer shall

4.4.6

4.4.7

consider:
A.
Prior family violence involving either party;
B.
The relative severity of the injuries inflicted on each
person;
C.
The potential for future injury; and
D.
Whether one of the parties acted in self-defense.”
1.
McCracken v. State, 224 Ga. App. 356, 358 (1997)
(responding officer was authorized to make a
warrantless arrest based upon the victim’s statement
and her visible injuries without first investigating
the defendant’s explanation that she had thrown a
bowl of hot chili on him).
Family violence reports. O.C.G.A. § 17-4-20.1 (c) provides that
“[w]henever a law enforcement officer investigates an incident of
family violence, whether or not an arrest is made, the officer shall
prepare and submit to the supervisor or other designated person a
written report of the incident entitled ‘Family Violence Report.’
Forms for such reports shall be designed and provided by the
Georgia Bureau of Investigation. The report shall include the
following:
A.
Name of the parties;
B.
Relationship of the parties;
C.
Sex of the parties;
D.
Date of birth of the parties;
E.
Time, place, and date of the incident;
F.
Whether children were involved or whether the act of
family violence was committed in the presence of children;
G.
Type and extent of the alleged abuse;
H.
Existence of substance abuse;
I.
Number and types of weapons involved;
J.
Existence of any prior court orders;
K.
Type of police action taken in disposition of case, the
reasons for the officer’s determination that one party was
the primary physical aggressor, and mitigating
circumstances for why an arrest was not made;
L.
Whether the victim was apprised of available remedies and
services; and
M.
Any other information that may be pertinent.
1.
Meagher v. Quick, 264 Ga. App. 639, 643 (2003)
(whenever an incident of possible family violence is
investigated by police, whether the complaint is
founded or unfounded, preparation of a written
Family Violence Report is mandatory).
Entry into home without arrest/search warrant.
A.State v. Driggers, 306 Ga. App. 849 (2010) (warrantless entry
after arrest for the purpose of taking a victim’s statement is

4:21

4.4.8

4.5

illegal. Upon arrest, the exigent circumstances that justified
the warrantless entry had expired, as the victim was not in
need of assistance and was no longer in danger).
B.Randolph v. State, 278 Ga. 614, 614-615 (2004); aff’d Georgia
v. Randolph, 547 U.S. 103 (2006) (police officers lacked
authority to search marital residence, even though wife
consented to the search, where defendant, husband,
unequivocally declined to grant officers such consent).
C.
Chambers v. State, 252 Ga. App.190 (2001) (a victim may
invite police into her residence to investigate a claim of
domestic violence and thereby authorize a subsequent
warrantless arrest).
D.
Shaw v. State, 247 Ga. App. 867, 870-871 (2001) (a
warrantless entry by police to ask questions or to make an
arrest, absent invitation or exigent circumstances, may be
unconstitutional).
B.
Lord v. State, 297 Ga. App. 88(1)(a)(2009) (exigent
circumstances may authorize police to make a warrantless
entry into a home following a report of domestic violence
and to photograph or seize evidence in plain view); see also
McCauley v. State, 222 Ga. App. 600, 601 (1996)(exigent
circumstances).
E.
Duitsman v. State, 212 Ga. App. 348, 349 (1994) (officers
may pursue in “hot pursuit” a fleeing suspect into his home
after witnessing an act of family violence).
Act of family violence need not occur at home.
A.
Holland v. State, 239 Ga. App. 436 (1999) (a physical
altercation took place in public outside the residence).
B.
Gilbert v. State, 209 Ga. App. 483, 483-484 (1993) (officer
authorized to make warrantless arrest for act of family
violence despite the fact that the incident occurred on a dirt
road far away from the family residence).

Domestic Violence Bonds
4.5.1 When a person is arrested and released on bond for a domestic
violence offense, there is a strong likelihood that he will return to
the scene of his crime, i.e., the home he shares with the victim. To
minimize the risk of escalating violence in these cases, courts are
authorized to delay the setting of bond for such offenders and to
impose restrictive conditions of bond once set.
A.
Victims of domestic violence are at grave risk for
retribution once their abuser is released from jail.
Restrictive bond conditions may contribute significantly to
enhancing the safety of the victim and the victim’s other
family members.
B.
Solid authority indicates the critical importance of limiting
gun possession and use in family violence situations.

4:22

4.5.2

Leaving an abuser with access to a gun increases the risk
that later incidents of violence will turn lethal. A study of
intimate partner assaults in Atlanta found that assaults were
twelve times more likely to result in death to the victim if a
firearm was present. Linda E. Saltzman, PhD, et al.,
"Weapon Involvement and Injury Outcomes in Family and
Intimate Assaults," Journal of the American Medical
Association, vol. 267, no. 22 (1992). From 1990 to 2002,
over two-thirds of the spouse or ex-spouse victims, killed
as a result of domestic violence, were killed by guns.
(Bureau of Justice Statistics, 2005) (See Appendix E,
Paragraph B - Misdemeanor Crimes of Domestic Violence
and Federal Firearms Prohibitions) (See Section 3.2.2.B Firearms and Appendix B - Assessing for Lethality)
C.
In addition to physical retribution, immigrant and refugee
victims are at special risk when their batterers use such
victim’s documentation and immigration status as a tool of
family violence. (See Appendix H – Immigrants and
Refugees)
Offenses bondable only before a superior court judge. Many
common domestic violence offenses are bailable only before a
judge of the superior court. O.C.G.A. § 17-6-1(a) provides that
“[t]he following offenses are bailable only before a judge of the
superior court:
A.
Treason;
B.
Murder;
C.
Rape;
D.
Aggravated sodomy;
E.
Armed robbery;
F.
Aircraft hijacking and hijacking a motor vehicle;
G.
Aggravated child molestation;
H.
Aggravated sexual battery;
I.
Manufacturing, distributing, delivering, dispensing,
administering, or selling any controlled substance classified
under Code Section 16-13-25 as Schedule I or under Code
Section 16-13-26 as Schedule II;
J.
Violating Code Sections 16-13-31 or 16-13-31.1 [drug
trafficking];
K.
Kidnapping, arson, aggravated assault, or burglary if
the person, at the time of the alleged kidnapping, arson,
aggravated assault, or burglary, had previously been
convicted of, was on probation or parole with respect to, or
was on bail for kidnapping, arson, aggravated assault,
burglary, or one or more of the offenses listed in
paragraphs (1) through (10) of this subsection; and
L.
Aggravated stalking.”

4:23

4.5.3

4.5.4

4.5.5

4.5.6

4.5.7

4:24

All other offenses bondable before a court of inquiry. O.C.G.A.
§ 17-6-1(b)(1) provides that “[a]ll offenses not included in
subsection (a) of this Code section are bailable by a court of
inquiry.”
No person charged with a misdemeanor shall be refused bail.
A.
A person charged with committing a misdemeanor
domestic violence offense will generally be entitled to bail
provided that special eligibility provisions may apply
authorizing a court to deny bail or impose special
conditions of bond. (See Sections 4.5.5 thru 4.5.8, below.)
B.
O.C.G.A. § 17-6-1(b)(1) provides that “[e]xcept as
provided in subsection (g) of this Code section [relating to
appeal bonds], at no time, either before a court of inquiry,
when indicted or accused, after a motion for new trial is
made, or while an appeal is pending, shall any person
charged with a misdemeanor be refused bail.”
Eligibility for bail for family violence offenses. O.C.G.A. § 176-1(b)(2)(B) provides that “[w]hen an arrest is made by a law
enforcement officer without a warrant upon an act of family
violence pursuant to Code Section 17-4-20, the person charged
with the offense shall not be eligible for bail prior to the arresting
officer or some other law enforcement officer taking the arrested
person before a judicial officer pursuant to Code Section 17-4-21.”
Stalking offenses / special conditions of bail. O.C.G.A. § 17-61(b)(3) provides that:
A.
Notwithstanding any other provision of law, a judge of a
court of inquiry may, as a condition of bail or other pretrial
release of a person who is charged with violating Code
Section 16-5-90 [Stalking] or 16-5-91 [Aggravated
Stalking], prohibit the defendant from entering or
remaining present at the victim’s school, place of
employment, or other specified places at times when the
victim is present or intentionally following such person.
B.
If the evidence shows that the defendant has previously
violated the conditions of pretrial release or probation or
parole which arose out of a violation of Code Section 16-590 [Stalking] or 16-5-91 [Aggravated Stalking], the judge
of a court of inquiry may impose such restrictions on the
defendant which may be necessary to deter further stalking
of the victim, including but not limited to denying bail or
pretrial release. (See Section 4.5.1A, B & C, above, on
Retribution.)
Schedule of bails for offenses bondable by courts of inquiry.
O.C.G.A. § 17-6-1(f) provides that:
A.
Except as provided in subsection (a) of this Code section or
as otherwise provided in this subsection, the judge of any

4.5.8

court of inquiry may by written order establish a schedule
of bails and unless otherwise ordered by the judge of any
court, a person charged with committing any offense shall
be released from custody upon posting bail as fixed in the
schedule.
B.
For offenses involving an act of family violence, as
defined in Code Section 19-13-1, the schedule of bails
provided for in paragraph (A) of this subsection shall
require increased bail and shall include a listing of specific
conditions which shall include, but not be limited to,
having no contact of any kind or character with the victim
or any member of the victim’s family or household, not
physically abusing or threatening to physically abuse the
victim, the immediate enrollment in and participation in
domestic violence counseling (experts in this field warn
against counseling – See Section 3.2.5 - Counseling and
Family Violence Intervention Programs and Appendix G –
Family Violence Intervention Programs) and, substance
abuse therapy, or other therapeutic requirements. (See
Appendix I – Mental Illness and the Court.)
C.
For offenses involving an act of family violence, the judge
shall determine whether the schedule of bails and one or
more of its specific conditions shall be used, except that
any offense involving an act of family violence and serious
injury to the victim shall be bailable only before a judge
when the judge or the arresting officer is of the opinion that
the danger of further violence to or harassment or
intimidation of the victim is such as to make it desirable
that the consideration of the imposition of additional
conditions as authorized in this Code section should be
made. Upon setting bail in any case involving family
violence, the judge shall give particular consideration to the
exigencies of the case at hand and shall impose any specific
conditions as he or she may deem necessary. As used in
this Code section, the term "serious injury" means bodily
harm capable of being perceived by a person other than the
victim and may include, but is not limited to, substantially
blackened eyes, substantially swollen lips or other facial or
body parts, substantial bruises to body parts, fractured
bones, or permanent disfigurements and wounds inflicted
by deadly weapons or any other objects which, when used
offensively against a person, are capable of causing serious
bodily injury. (See Appendix B – Assessing for Lethality)
No appeal bond for certain crimes. O.C.G.A. § 17-6-1(g)
provides that “[n]o appeal bond shall be granted to any person who
has been convicted of murder, rape, aggravated sodomy, armed

4:25

robbery, aggravated child molestation, child molestation,
kidnapping, trafficking in cocaine or marijuana, aggravated
stalking, or aircraft hijacking and who has been sentenced to serve
a period of incarceration of five years or more. The granting of an
appeal bond to a person who has been convicted of any other
felony offense or of any misdemeanor offense involving an act of
family violence as defined in Code Section 19-13-1, or of any
offense delineated as a high and aggravated misdemeanor or of any
offense set forth in Code Section 40-6-391, shall be in the
discretion of the convicting court. Appeal bonds shall terminate
when the right of appeal terminates, and such bonds shall not be
effective as to any petition or application for writ of certiorari
unless the court in which the petition or application is filed so
specifies.”
A.
Brooks v. State, 232 Ga. App 115, 129 (1998) (the burden
of seeking an appeal bond is on the convicted applicant and
the decision whether to grant an appeal bond is a matter
within the discretion of the trial judge).
4.5.9 Bond conditions.
A.
Camphor v. State, 272 Ga. 408, 410 (2000) (when a
defendant is charged with a violent crime against a specific
victim, it is within the trial court’s inherent powers to
require that the defendant avoid any contact with the victim
as a condition of remaining free pending trial).
B.
Clarke v. State, 228 Ga. App. 219, 220 (1997) (a trial court
has inherent authority to set conditions for bonds, even
misdemeanor bonds, and such conditions will be upheld by
the appellate courts absent an abuse of discretion).
4.5.10 Amendment of bond conditions. O.C.G.A. § 17-6-18 provides
that “[a]ll bonds taken under requisition of law in the course of a
judicial proceeding may be amended and new security given if
necessary.”
A.
Camphor v. State, 272 Ga. 408, 409 (2000) (upholding
amendment of bond to add a “stay away” condition).
4.5.11 Revocation of bonds.
A.
Hood v. Carsten, 267 Ga. 579, 581 (1997) (because a bond
revocation involves the deprivation of one’s liberty, a trial
court’s decision to revoke bond must comport with at least
minimal state and federal due process requirements).
B.
Clarke v. State, 228 Ga. App. 219, 221 (1997) (a trial court
has inherent authority to revoke a defendant’s bond if, after
a hearing, it finds satisfactory proof that the defendant has
violated one or more of its provisions).

4:26

5

CHAPTER 5 – EVIDENCE
5
EVIDENCE.
The prosecution of domestic violence cases has increased dramatically in recent
years. Recurring evidentiary issues raised in such prosecutions have led to a body
of case law interpreting and applying general evidentiary principles in the
domestic violence context. Effective January 1, 2013, Georgia’s rules of evidence
underwent a dramatic change. In April 2011, the Georgia legislature voted to
completely replace the rules of evidence, Title 24 of the Code, with a new title
based very closely on the Federal Rules of Evidence. Several of these commonly
recurring evidentiary issues and the new rules that have taken effect, are
summarized below.
5.1

Sufficiency of Evidence
5.1.1 No Corroboration Required.
A.
O.C.G.A. 24-14-8 provides that “[t]he testimony of a
single witness is generally sufficient to establish a fact.”
(replaced OCGA 24-4-8)
1.
Hartley v. State, 299 Ga. App. 534 (2009)(written
statement of defendant’s estranged wife was
sufficient to support the verdict of guilty).
2.
Simmons v. State, 285 Ga. App. 129, 130
(2007)(victim's testimony on direct examination
was adequate, standing alone, to sustain the
conviction).
5.1.2 Corroboration, In General.
A.
Although not required, corroborating evidence may in some
domestic violence cases be necessary to meet the State’s
burden of establishing guilt beyond a reasonable doubt.
Some common methods of corroborating a victim’s
testimony are listed below.
1.
Blood splatter.
a.
Peterson v. State, 274 Ga. 165, 166 (2001)
(police observed blood splatters on the walls
and blood stains in several places, including
where the victim’s head had apparently been
slammed into a wall).
2.
Confessions and admissions.
a.
Miller v. State, 273 Ga. App. 761, 762
(2005) (defendant testified at trial and
admitted a physical altercation with victim).
b.
Demons v. State, 277 Ga. 724, 725 (2004)
(defendant called 911 and informed the
dispatcher that he had just killed his
housemate).
3.
Emails and letters.

5:1

(a)

4.

5.

6.

5:2

Port v. State, 295 Ga. App. 109(2)(a)
(2008)(defendant’s emails to his estranged
girlfriend expressing his love and affection
for her were admissible to show his state of
mind).
Eyewitness testimony.
a.
Holland v. State, 239 Ga. App. 436, 436-437
(1999) (two eyewitnesses testified that they
observed defendant standing over the victim
and striking her with his fists).
b.
Simpson v. State, 214 Ga. App. 587, 588(2)
(1994) (testimony of two eyewitnesses
sufficient to overcome domestic violence
victim’s claimed lack of knowledge
regarding who had shot her).
Medical reports.
a.
Lewis v. State, 277 Ga. 534, 535 (2004)
(medical examiner testified that defendant’s
estranged wife had suffered 42 injuries,
including 17-20 stab or cut wounds to the
neck).
b.
Carter v. State, 268 Ga. App. 688, 689
(2004) (medical testimony confirmed that
defendant’s wife had sustained “quite a bit
of head trauma”).
Photographs of injuries.
a.
Miller v. State, 273 Ga. App. 761, 763-763
(2005) (photographs showing extent of
victim’s injuries inconsistent with
defendant’s claim of self-defense).
b.
Bell v. State, 278 Ga. 69, 72 (2004) (trial
court did not err in admitting a pre-autopsy
photograph as the body had not been altered
by authorities and the photograph was
otherwise admissible to demonstrate the
nature and location of the victim’s wounds).
c.
Moody v. State, 277 Ga. 676, 680 (2004)
(photographs of victim’s partially buried
body not overly gruesome and any prejudice
was outweighed by their probative value).
d.
Carter v. State, 268 Ga. App. 688, 690
(2004) (photographs depicting wife’s badly
swollen and bruised face admissible to
establish “bodily harm” element in this
kidnapping with injury case).

e.

Almond v. State, 274 Ga. 348, 349 (2001)
(properly authenticated digital photographs,
i.e., those identified as fair and accurate by
one having viewed the scene depicted
therein, are admissible).
7.
Physician’s Medical Exam.
(a)
Brown v. State, 293 Ga. App.
633(1)(c)(2008)(physician who performed
rape exam of victim properly permitted to
testify that victim's demeanor was consistent
with someone who had been sexually
assaulted).
8.Police officer observations.
(a)
Horne v. State, 298 Ga. App. 602
(2009)(investigators testified that the scene
was consistent with the victim's story, as
were her injuries).
(b)
Mullins v. State,298 Ga. App. 368 (2009)(it
is not improper bolstering for a police
officer to express an opinion as to whether
objective evidence in the case is consistent
with the victim's story).
(c)
Shaw v. State, 247 Ga. App. 867, 871 (2001)
(the responding officer noticed red marks
around the victim’s throat as well as the
defendant’s demeanor toward the victim).
(d)
Holland v. State, 239 Ga. App. 436, 437
(1999) (officer testified that the victim had a
bleeding lower lip and some finger marks on
her neck).
(e)
Allen v. State, 213 Ga. App. 290 (1994)
(officer testified that the victim’s injuries
were consistent with her claim of domestic
violence and inconsistent with the
defendant’s accidental fall theory).
9.
Property damage.
a.
Mize v. State, 262 Ga. App. 486, 489 (2003)
(responding officer testified that telephones
in the bedroom and living room had been
disabled, a vase containing flowers lay
broken on the living room floor, and the
footboard of a bed was broken off).
b.
Nasworthy v. State, 169 Ga. App. 603, 640
(1984) (officer responding to domestic
violence call noticed that several potted

5:3

5.1.3

5.2

plants had been overturned in the hallway of
the house).
10.
Torn clothing.
a.
Hawks v. State, 223 Ga. App. 890, 892
(1996) (responding officer testified to
observing victim’s torn shirt).
b.
Nasworthy v. State, 169 Ga. App. 603, 640
(1984) (officer responding to domestic
violence call noticed that victim’s
housedress had been torn at the sleeve).
11.
Weapons.
a.
Mize v. State, 262 Ga. App. 486, 489 (2003)
(responding officer found car washing brush
that the defendant had allegedly used to beat
his wife).
b.
Nasworthy v. State, 169 Ga. App. 603, 640
(1984) (recovery of .22 magnum revolver
allegedly used by defendant during a
domestic incident).
Intent to Commit Crime, Proof of.
A.
O.C.G.A. § 16-2-6 provides that “[a] person will not be
presumed to act with criminal intention but the trier of facts
may find such intention upon consideration of the words,
conduct, demeanor, motive, and all other circumstances
connected with the act for which the accused is
prosecuted.”
1.
Shaw v. State, 247 Ga. App. 867, 871 (2001) (a jury
may infer that a person acted with criminal intent
after considering the words, conduct, demeanor,
motive, and all other circumstances connected with
the act for which the accused is prosecuted).

Hearsay and Confrontation Issues
5.2.1 Hearsay, In General.
A.
Any analysis of hearsay or the applicability of hearsay
exceptions in domestic violence cases must include and
take into careful consideration the effect of Crawford v.
Washington, 541 U.S. 36 (2004), which sharply
circumscribed hearsay exceptions purporting to dispense
with the Confrontation Clause’s cross-examination
requirement. (See The Confrontation Clause, Section 5.2.2,
below.)
B.
Hearsay.
.
1
O.C.G.A. 24-8-801(c) defines hearsay as “a
statement, other than one made by the declarant
while testifying at the trial or hearing, offered in

5:4

C.

evidence to prove the truth of the matter asserted.”
The definition of hearsay is nearly identical to
Federal Rule 801(c) and is generally consistent with
prior Georgia law.
2.
O.C.G.A. § 24-8-807 states that “A statement not
specifically covered by any law but having
equivalent circumstantial guarantees of
trustworthiness shall not be excluded by the hearsay
rule, if the court determines that:
(1)The statement is offered as evidence of a
material fact;
(2)The statement is more probative on the
point for which it is offered than any
other evidence which the proponent can
procure through reasonable efforts; and
(3)The general purposes of the rules of
evidence and the interests of justice will
best be served by admission of the
statement into evidence.
3.
Mims v. State 314 Ga. App. 170 (2012) Defendant
made a motion for a new trial that was denied and
appealed that verdict on the ground that the trial
court erred in admitting the victim’s prior consistent
statement over his hearsay objection and in
admitting a police officer’s allegedly irrelevant
testimony. The Court then stated that it was proper
to allow the officer’s hearsay testimony as prior
consistent testimony in light of defendant’s
questioning.
Necessity Exception.
1.
O.C.G.A. § 24-3-1(b) provides that “[h]earsay
evidence is admitted only in specified cases from
necessity.”
2.
O.C.G.A. § 24-8-807 is consistent with former
O.C.G.A. § 24-3-1(b), the statute it replaced, but
adds the additional burden on the statement's
proponent to make known to the adverse party,
sufficiently in advance of trial, the intention to use
the statement so as to provide the adverse party
“with a fair opportunity to meet it.”
a.
To satisfy the necessity exception, the
proponent must (1) show a necessity for the
evidence, e.g., the declarant is deceased, (2)
a circumstantial guaranty of the statement’s
trustworthiness, and (3) that the hearsay
statement is more probative and revealing

5:5

D.

than other available evidence See Smith v.
State, 284 Ga. 304(3)(c)(2008); Brown v.
State, 278 Ga. 810, 811 (2005).
b.
Wright v. State, 285 Ga.
57(3)(b)(2009)(child’s statements to her
grandmother on the day prior to her death
that the defendant had caused the scratches
to her stomach held admissible under
necessity exception).
c.
Culmer v. State, 282 Ga. 330(2)(2008)
(trustworthiness of deceased victim’s
statement to her friend shown by the nature
of their friendship in which they would often
share the intimate details of their lives and
relationships).
d..
McPherson v. State, 274 Ga. 444 (2001)
(deceased’s statements to her friends and coworkers to whom she routinely confided
about her intended breakup with the
defendant held admissible under necessity
exception).
e.
Harrison v. State, 238 Ga. App. 485, 486
(1999) (state failed to make the requisite
showing of necessity when it failed to call
other available eyewitnesses to the incident).
f.
Miller v. State 289 Ga.854 (2011)
(Testimony by deceased victim’s friend that
victim told friend she had been previously
beaten up by defendant was admissible.
Medical Diagnosis and Treatment.
1.

5:6

Statements made for the purpose of diagnosis or
treatment as well as medical history and
information as to the cause or source of an injury
are admissible under O.C.G.A. § 24-8-803 (4).
a.
Payne v. State, 273 Ga. App 483, 486
(2005) (statements to a treating physician
relating to the cause of a victim’s injuries
were held admissible as being pertinent to
diagnosis and treatment in this non-domestic
violence case).
b.
Brown v. State, 273 Ga. App. 88, 89 (2005)
(statements regarding the identity of the
attacker and the circumstances surrounding
the attack do not fall within this statutory

E.

F.

exception if they are not pertinent to
diagnosis or treatment).
c.
Roberson v. State, 187 Ga. App. 485, 486
(1988) (child’s statements relating her
medical history in this molestation case were
properly admitted, but statements
identifying her molester were not).
Prior Consistent Statements.
1.
O.C.G.A. § 24-3-2 was repealed and replaced
by O.C.G.A. § 24-8-801 effective January 1, 2013).
O.C.G.A. § 24-8-801 states that “an out-of-court
statement shall not be hearsay if the declarant
testifies at the trial or hearing, is subject to crossexamination concerning the statement, and the
statement is admissible as a prior inconsistent
statement or a prior consistent statement
under Code Section 24-6-613 or is otherwise
admissible under this chapter”.
a.
Forde v. State, 289 Ga. App. 805(1)
(2008)(child’s videotaped interview, made
well after the alleged improper motive came
into existence, was inadmissible as a prior
consistent statement).
b.
Mims v. State 314 Ga. App. 170 (2012)
Defendant tried to get the victim to testify
that she had been drinking prior to the
incident and could not positively say
defendant was the attacker, thus calling her
veracity into question. The Court then stated
that it was proper to allow the officer’s
hearsay testimony as prior consistent
testimony in light of defendant’s
questioning.
Prior Inconsistent Statements.
1.
O.C.G.A. § 24-6-613 replaced O.C.G.A. § 24-9-83
January 1, 2013. The new rule steps away from one
aspect of the old rule which requires that a witness
be given an opportunity to recall his or her prior
inconsistent statement before being impeached. The
new Georgia rule allows a witness to be confronted
with a prior inconsistent statement without any
foundation. Moreover, extrinsic evidence of the
witness's prior inconsistent statement is admissible
as long as the witness “is afforded an opportunity”
at some point to admit, deny, or explain the prior

5:7

statement. The details of this new rule are discussed
below. O.C.G.A. § 24-6-613 (a) & (b) provides:
a.
In examining a witness concerning a prior
statement made by the witness, whether
written or not, the statement need not be
shown nor its contents disclosed to the
witness at that time; provided, however,
upon request the same shall be shown or
disclosed to opposing counsel.
b.
Except as provided in Code Section 24-8806, extrinsic evidence of a prior
inconsistent statement by a witness shall not
be admissible unless the witness is first
afforded an opportunity to explain or deny
the prior inconsistent statement and the
opposite party is afforded an opportunity to
interrogate the witness on the prior
inconsistent statement or the interests of
justice otherwise require. This subsection
shall not apply to admissions of a partyopponent as set forth in paragraph (2) of
subsection (d) of Code Section 24-8-801.
c.
Prerequisites to admissibility.
(1)
Griffin v. State, 262 Ga. App. 87, 88
(2003) (first, the prior statement
must contradict or be inconsistent
with the witness’ in-court testimony;
second, the prior statement must be
relevant to the case; and, third, the
examiner must lay the proper
foundation with the witness).
d.
Admissible as substantive evidence.
(1)
Hartley v. State, 299 Ga. App. 534
(2009)(written statement of
defendant’s estranged wife was
admissible substantively as a prior
inconsistent statement to support the
verdict of guilty).
(2)
Simmons v. State, 285 Ga. App. 129
(2007)(jury was authorized to rely
upon victim's prior statement to the
responding officer regarding
defendant’s assault as substantive
evidence notwithstanding her
disavowal of that statement at trial).

5:8

(3)

e.

G.

Griffin v. State, 262 Ga. App. 87, 88
(2003) (even though a witness may
recant on the stand, her prior
inconsistent statements may be
considered by the jury as substantive
evidence of the defendant’s guilt).
(4)
Gibbons v. State, 248 Ga. 858
(1982) (a prior inconsistent statement
of a witness who takes the stand and
is subject to cross-examination is
admissible as substantive evidence,
and is not limited in value only to
impeachment purposes).
Recanting victims.
(1)
Griffin v. State, 262 Ga. App. 87, 8889 (2003) (when at trial the
defendant’s girlfriend recanted her
earlier statements about the
defendant’s abuse, the State was
permitted to impeach her testimony
with her taped 911 call for help).
(2)
Watkins v. State, 183 Ga. App. 778,
779 (1987) (a recanting victim’s
prior inconsistent statements to
police at the scene of a domestic
dispute may be used not only to
impeach her trial testimony, but also
as substantive evidence of the
defendant’s guilt).

Res Gestae.
1.
Pursuant to O.C.G.A. § 24-8-803(2), an “excited
utterance is a statement relating to a startling event
or condition made while the declarant was under the
stress of excitement caused by the event or
condition”.
a.
Thompson v. State, 291 Ga. App. 355(2)
(2008)(audiotape of victim’s 911 call was
made with such immediacy after the attack
that it qualified under the res gestae
exception).
b.
Orr v. State, 281 Ga. 112 (2006) (admission
of a 911 tape where an unknown third party,
who was not the caller, can be heard stating
the defendant’s name was erroneous under
res gestae because the statement was
reduced to an expression of opinion or

5:9

5.2.2

5:10

conclusion absent evidence showing the
declarant spoke from personal knowledge).
c.
Wilbourne v. State, 214 Ga. App. 371, 372
(1994) (determination whether evidence is
res gestae is in the discretion of the trial
court but such discretion was abused in this
case).
The Confrontation Clause.
A.
In Crawford v. Washington, 541 U.S. 36 (2004), the
United States Supreme Court held that a criminal
defendant’s Sixth Amendment right to confront witnesses
against him is violated when at trial a court admits the
“testimonial” pre-trial statements of an unavailable
prosecution witness under a hearsay exception unless the
defendant had a prior opportunity for cross-examination.
While the Court stopped short of spelling out a
comprehensive definition of "testimonial," it noted that the
term includes, at a minimum, prior testimony at a
preliminary hearing, before a grand jury, or at a former
trial, and statements made in police interrogations. The
Court further noted that “testimonial” statements are
typically made under circumstances which would lead an
objective witness to reasonably believe that his statement
would be available for use at a later trial.
B.
Under Crawford, with some exceptions as noted below, it
appears that a domestic violence victim’s on-the-scene and
subsequent formal statements to police will ordinarily be
considered as “testimonial” in nature and therefore
inadmissible in the event that the victim is unavailable for
cross-examination at trial, e.g., she invokes a spousal
testimonial privilege and refuses to testify or simply fails to
appear at trial.
1.
Testimonial Statements.
a.
Statements made to police officers.
(1)
Davis v. Washington, 547 U.S. 813;
126 S. Ct. 2266, 2273-74
(2006)(statements taken by police
officers in the course of interrogation
are “testimonial,” and subject to the
Confrontation Clause, when the
circumstances objectively indicate
that there is no ongoing emergency,
and that the primary purpose of the
interrogation is to establish or prove
past events potentially relevant to
later criminal prosecution).

(2)

b.

Davis v. Washington, 547 U.S. 813;
126 S. Ct. 2266, 2278-79
(2006)(alleged domestic battery
victim's written statements in
affidavit given to police officer who
responded to domestic disturbance
call were “testimonial” and,
therefore, subject to Confrontation
Clause because there was no
emergency in progress when
statements were given and the
primary purpose of officer's
interrogation was to investigate a
possible past crime).
(3)
Wright v. State, 285 Ga.
57(3)(a)(2009)(holding that child's
words in response to a question by
law enforcement after emergency
had already ended were reflective of
past events and, as such, were
testimonial in nature).
(4)
Pitts v. State, 280 Ga. 288 (2006)
(statements which are originally nontestimonial, such as statements made
to for the purpose of seeking
immediate assistance, may shift to
testimonial statements).
(5)
Jenkins v. State, 278 Ga. 598, 605
(2004) (police interrogations as
delineated in Crawford include
“structured police questioning”).
(6)
Moody v. State, 277 Ga. 676, 679
(2004) (police interrogations as
delineated in Crawford include
interviews with witnesses conducted
in the field shortly after the
commission of a crime).
Waiver of Error.
(1)
Wilkerson v. State, 286 Ga. 201
(2009) (when a defendant fails to
raise an objection at trial to
testimony as violating his right of
confrontation, he is barred from
raising the objection on appeal)
(2)
Cranford v. State, 275 Ga. App. 474,
475 (2005) (when defendant’s wife

5:11

c.

5:12

invoked her marital privilege and
refused to testify, her testimonial
statements to police were
nonetheless properly admitted under
the necessity exception where
defendant failed to raise a
constitutional objection under
Crawford).
(3)
Walton v. State, 278 Ga. 432, 434
(2004) (defendant’s failure at trial to
raise an objection to the admission of
a dying declaration under the Sixth
Amendment precluded consideration
of the Crawford issue on appeal).
(4)
Watson v. State, 278 Ga. 763, 767
(2004) (Crawford error waived
where defendant failed to timely
object to admission of his deceased
wife’s prior statements to a police
officer regarding her fear of the
defendant and his propensity for
violence).
Reversible Error.
(1)
Miller v. State, 273 Ga. App. 761,
764 (2005) (reversal of some
convictions will be required when a
wife’s testimonial hearsay statements
to police are admitted over a
defendant’s objection and the State is
unable to show beyond a reasonable
doubt that such statements did not
contribute to the verdict).
(2)
Miller v. State 289 Ga. 854 (2011)
Defendants were a mother and a son.
Defendants appealed, arguing that
their Sixth Amendment rights to
confront witnesses were violated
when the trail court allowed a
Florida judge to testify to the
contents of three petitions for
temporary protective injunctions that
were filed in his court, two by the
victim and one by the mother. In
regards to the mother, the Court held
that the testimony by the Florida
judge constituted reversible error.

d.

The Supreme Court reversed the
conviction for the mother.
Harmless Error.
(1)
Boyd v. State, 286 Ga. 166, 168
(2009) (“a right of confrontation
violation is considered harmless if
there is not a reasonable probability
that it contributed to the verdict or if
the other evidence against the
defendant is overwhelming”)
(2)
Wright v. State, 285 Ga.
57(3)(a)(2009)(erroneous admission
of child’s testimonial hearsay
statements to investigating officer
that “Daddy did it” held harmless
where no “reasonable probability
that the evidence contributed to the
verdict”).
(3)
Humphrey v. State, 281 Ga. 596,
599 (2007) (a Crawford violation is
harmless if the hearsay was
cumulative of other evidence or if
the evidence against the defendant
was overwhelming).
(4)
Bell v. State, 278 Ga. 69, 72 (2004)
(estranged wife’s prior hearsay
statements to police about prior
difficulties with defendant were
testimonial, but admission of such
statements was harmless in light of
the strength of the evidence
including other admissible evidence
of prior difficulties).
(5)
Brooks v. State 313 Ga. App. 789
(2012) Defendant was convicted of
aggravated stalking. The Defendant
appealed contending that the trial
court erred in excluding or limiting
evidence of certain defense
witnesses. The Court of Appeals
confirmed the defendant’s conviction
and held that “any error in the
exclusion of evidence was
harmless”.
(6)
Moody v. State, 277 Ga. 676, 680
(2004) (victim’s prior hearsay

5:13

2.

5:14

statements to police two years before
her murder about her being assaulted
with a shotgun by the defendant were
testimonial, but admission was
harmless given such testimony was
cumulative of other admissible
evidence and because there was no
reasonable possibility that it
contributed to the conviction).
Non-Testimonial Statements.
a.
Statements made to police officers.
(1)
Davis v. Washington, 547 U.S. 813,
126 S. Ct. 2266, 2273-74
(2006)(statements taken by police
officers in the course of an
interrogation are “non-testimonial,”
and not subject to the Confrontation
Clause, when they are made under
circumstances objectively indicating
that the primary purpose of the
interrogation is to enable police
assistance to meet an ongoing
emergency).
(2)
Hester v. State, 283 Ga. 367(4)
(2008)(statements made by cut and
bleeding victim to responding police
and paramedic in response to
question “what happened” deemed
non-testimonial).
b.
Statements made to persons other than
police officers.
(1)
Brown v. State, 278 Ga. 810, 811
(2005) (victim’s hearsay statements
to her cousin that she was distressed
because defendant had been stalking
her, attacked her, and had threatened
to kill her one week before her
murder were non-testimonial and
properly admitted under the
necessity exception to the hearsay
rule).
(2)
Demons v. State, 277 Ga. 724, 727728 (2004) (victim’s hearsay
statements were not “testimonial” in
nature as they were made in a
conversation with a close friend,

c.

before the commission of any crime,
and without any reasonable
expectation that they would be used
at a later trial, and thus properly
admitted under the necessity
exception to the hearsay rule).
911 calls.
(1)
Davis v. Washington, 547 U.S. 813;
126 S. Ct. 2266, 2276 (2006)
(statements made by domestic abuse
victim in response to 911 operator’s
questions while the defendant was
allegedly inside the victim’s home
were not “testimonial” and,
therefore, were not subject to
Confrontation Clause because the
victim was speaking about events as
they were actually happening, and
the primary purpose of the 911
operator’s interrogation was to
enable police assistance to meet an
ongoing emergency).
(2)
Davis v. Washington, 547 U.S. 813;
126 S. Ct. 2266, 2277 (2006) (a
conversation which begins as an
interrogation to determine the need
for emergency assistance may
“evolve into testimonial statements”
once the emergency ends, and trial
courts should, through in limine
procedure, redact or exclude portions
of any statement that have become
testimonial).
(3)
Pitts v. State, 280 Ga. 288 (2006)
(admission of 911 tape does not
violate the Confrontation Clause
where the caller’s primary purpose is
to thwart an ongoing crime or seek
assistance in a situation involving
immediate danger).
(4)
Thomas v. State, 284 Ga.
666(2)(2008)(admitting victim’s 911
call identification of her ex-husband
as the person who shot her under
rationale of Davis).

5:15

(5)

3.

5:16

Thompson v. State, 291 Ga. App.
355(2)(2008) (victim’s 911 call
deemed “non-testimonial” in that it
was made to seek assistance in a
situation involving immediate
danger).

Exceptions.
a.
Statements not offered to prove the truth of
the matter asserted (i.e., non-hearsay).
(1)
In Crawford, the Supreme Court
stated that the Confrontation Clause
does not bar the use of testimonial
statements for purposes other than
establishing the truth of the matter
asserted. Crawford, 541 U.S. at 59,
fn.9.
(i)
Robinson v. State, 271 Ga.
App. 584, 587 (2005) (the
Confrontation Clause does
not bar the use of testimonial
statements for purposes other
than establishing the truth of
the matter asserted).
b.
Dying declarations.
(1)
In Crawford, the Supreme Court
suggested that dying declarations
should be exempted from the crossexamination requirement of the Sixth
Amendment because a hearsay
exception for such statements existed
at common law at the time of the
founding. Crawford, 541 U.S. at 5456, fn.6.
(i)
Sanford v. State, 2010 Ga.
LEXIS 395 (2010) (dying
declarations made while the
subject is conscious of his
condition being near death,
even when death does not
come immediately, are
admissible).
(ii)
Sanford v. State, 2010 Ga.
LEXIS 395 (2010) (dying
declarations made in
response to police inquiries
are admissible).

(iii)

c.

Walton v. State, 278 Ga. 432,
435 (2004) (although many
dying declarations will be
made under circumstances
that render such hearsay
statements non-testimonial,
there is authority for
admitting even those dying
declarations that clearly are
testimonial).
Witness testifies and/or is subject to crossexamination.
(1)
In Crawford, the Supreme Court
explicitly stated that if a declarant
appears for cross-examination at
trial, the Confrontation Clause places
no constraints at all on the use of his
prior testimonial statements.
Crawford, 541 U.S. at 59, fn.9.
(i)
Dickson v. State, 281 Ga.
App. 539, 539-541 (2006)
(declarant’s testimony at a
pre-trial bond hearing did not
afford defendant adequate
opportunity for crossexamination regarding a prior
testimonial statement to
police.)
(ii)
Rice v. State, 281 Ga. 149,
150-151 (2006) (defendant
waived any Crawford
objection when he chose not
to cross-examine the
declarant at a pre-trial
deposition.)
(iii)
Robinson v. State, 271 Ga.
App. 584, 587 (2005) (when
the declarant appears for
cross-examination at trial, the
Confrontation Clause places
no constraints at all on the
use of his prior testimonial
statements).
(iv)

Chambers v. State, 252 Ga.
App. 190, 194 (2001) (no

5:17

d.

e.

5:18

error in admission of
statements made by
defendant’s girlfriend to a
police officer where the
girlfriend testified at trial and
was subject to crossexamination).
Prior in-court testimony subjected to crossexamination.
(1)
In Crawford, the Supreme Court held
that a defendant’s right to confront
the witnesses against him at trial
would be satisfied if he had had an
opportunity to cross examine an
unavailable witness at a previous
court proceeding in the case.
Crawford, 541 U.S. at 57-58.
(i)
Kilgore v. State, 291 Ga.
App. 892(1)(2008)(Crawford
satisfied where defendant had
prior opportunity to crossexamine his live-in girlfriend
at his probation revocation
hearing despite her refusal to
testify at his trial on the same
underlying incident).
(ii)
Pitts v. State, 272 Ga. App.
182, 186-187 (2005), cert.
granted Sept. 19, 2005
(stating general rule that
defendant must have been
afforded a prior opportunity
to cross-examine his wife
before her testimonial
statements to police could be
admitted).
Forfeiture due to defendant’s own
misconduct.
(1)
In Crawford, the Supreme Court
stated that the rule of forfeiture by
wrongdoing survives to extinguish
the right to confrontation when the
hearsay declarant’s unavailability is
attributable to the defendant’s own
wrongdoing. Crawford, 541 U.S. at
62.

(2)

f.

Davis v. Washington, 547 U.S. 813;
126 S. Ct. 2266, 2280 (2006) (one
who obtains the absence of a witness
by wrongdoing forfeits the
constitutional right to confrontation).
(3)
Giles v. Calif., 128 S. Ct. 2678
(2008)(in order to invoke the
forfeiture exception, the state must
prove deliberate witness tampering
by the defendant, i.e., that the
defendant’s actions in rendering the
hearsay declarant unavailable were
specifically designed to prevent such
witness from testifying).
(i)
Note: Addressing concerns
raised by the dissent, the
majority opinion in Giles
points out that acts of
domestic violence are often
intended
specifically
to
dissuade a victim from
resorting to outside help,
including cooperating with
police and prosecutors. Id. at
2693.
Hearsay admissible at bond hearings,
preliminary hearings, motions to suppress,
etc.
(1)
The right to cross-examination
guaranteed by the Confrontation
Clause is generally considered to be
a “trial right” and therefore the
opportunity to cross-examine a
hearsay declarant is not
constitutionally mandated for nontrial stages of a criminal prosecution.
See California v. Green, 399 U.S.
149, 157 (1970); Pennsylvania v.
Ritchie, 480 U.S. 39, 52-53 (1987).
(i)
Fair v. State, 284 Ga.
165(3)(e)(2008)(guilt or
innocence is not at issue on a
motion to suppress and does
not involve the issue of right
of confrontation).

5:19

(ii)

(iii)-

(iv)

(v)-

5.3

Gresham v. Edwards, 281,
Ga. 881 (2007) overruled on
other grounds by Brown v.
Crawford, 289 Ga. 722
(2011) (the right to
confrontation is a trial right,
thus Crawford is not
applicable to preliminary
hearings.)
Banks v. State, 277 Ga. 543,
544 (2004) (admission of
hearsay for the purpose of
establishing probable cause
for search warrant does not
violate the constitutional
right of a defendant to
confront the accusing
witnesses, because guilt or
innocence is not the issue for
determination).
U.S. v. Ventresca, 380 U.S.
102, 107 (1965)(a finding of
probable cause may rest upon
evidence which is not legally
competent in a criminal trial).
Jones v. U.S., 362 U.S. 257,
271 (1960) overruled on
other grounds by U.S. v.
Salvucci, 448 U.S. 83 (1980)
(it has long been recognized
that hearsay is admissible in
determining the existence of
probable cause).

Similar Transactions / Prior Difficulties
5.3.1 Similar Transactions or Occurrences. Prior incidents involving
an accused and the same victim should ordinarily be treated as
“prior difficulties” not as similar transactions. (See Prior
Difficulties, Section 5.3.2., below.)
A.
Notice / Timeliness. Uniform Superior Court Rule 31.1
provides that “[n]otices of the state’s intention to present
evidence of similar transactions or occurrences … shall be
given and filed at least ten (10) days before trial unless the
time is shortened or lengthened by the judge.”
1.
Rodriguez v. State, 211 Ga. App. 256, 258 (1993)
(the purpose of timely advance notice is to allow the

5:20

B.

C.

D.

defendant to investigate the validity, relevancy, and
other aspects of admissibility of the prior offenses).
Notice / Content. Uniform Superior Court Rule 31.3(B)
provides that “[t]he notice shall be in writing, served upon
the defendant’s counsel, and shall state the transaction,
date, county, and name(s) of the victim(s) for each similar
transaction or occurrence sought to be introduced. Copies
of accusations or indictments, if any, and guilty pleas or
verdicts, if any, shall be attached to the notice.”
Hearings. Uniform Superior Court Rule 31.3(B) provides
that “[t]he judge shall hold a hearing at such time as may
be appropriate, and may receive evidence on any issue of
fact necessary to determine the request, out of the presence
of the jury. The burden of proving that the evidence of
similar transactions or occurrences should be admitted
shall be upon the prosecution. The State may present
during the trial evidence of only those similar transactions
or occurrences specifically approved by the judge.”
1.
McClarity v. State, 234 Ga. App. 348, 354 (1998) (a
hearing at which the State relies upon the statements
of the prosecuting attorney to make the required
showing for the admissibility of similar transaction
evidence is sufficient to satisfy the requirements of
USCR 31.3(B)).
Three affirmative showings required.
1.
In Williams v. State, 261 Ga. 640 (1991), the
Georgia Supreme Court held that the State must
make three affirmative showings before a
proffered similar transaction should be admitted:
a.
The first of these affirmative showings is
that the State seeks to introduce evidence of
the independent offense or act, not to raise
an improper inference as to the accused’s
character, but for some appropriate purpose,
which has been deemed to be an exception
to the general rule of inadmissibility.
(1)
Lamb v. State, 273 Ga. 729, 731
(2001) (appropriate purposes
include: to show a defendant’s bent
of mind, including to demonstrate a
defendant’s course of conduct,
motive, intent, or lack of mistake).
(2)
Smith v. State, 232 Ga. App. 290,
291 (1998) (appropriate purposes
include: establishing a defendant’s
motive, intent, absence of mistake or

5:21

E.

F.

5:22

accident, plan or scheme, or
identity).
b.
The second affirmative showing is that there
is sufficient evidence to establish that the
accused committed the independent offense
or act.
(1)
Freeman v. State, 268 Ga. 185, 187188 (1997) (the State need only
establish that the defendant
committed the independent act by a
“preponderance of the evidence”).
c.
The third affirmative showing is that there
is a sufficient connection or similarity
between the independent offense or act and
the crime charged so that proof of the former
tends to prove the latter.
(1)
Bogan v. State, 255 Ga. App. 413,
414-415 (2002) (previous incident
need not be identical).
(2)
Lamb v. State, 273 Ga. 729, 731
(2001) (proper focus is on the
similarities, not the differences).
(3)
Ryan v. State, 226 Ga. App. 180, 181
(1997) (the lapse in time between the
similar transaction and the offense
being tried generally goes to the
weight, not the admissibility of the
similar act).
No limiting instruction required unless requested.
1.
Igidi v. State, 251 Ga. App. 581, 584 (2001) (the
law is well settled that the trial court does not
commit reversible error by failing to give a
contemporaneous limiting instruction without a
request that it do so).
Similar transactions and domestic violence cases.
1.
Henry v. State, 278 Ga. 554, 555-556 (2004) (trial
court’s finding of sufficient similarity of the prior
incident was not erroneous where it showed that
defendant had previously while intoxicated been
involved in a shooting after an argument with a
girlfriend).
2.
Talley v. State, 269 Ga. App. 712, 713-714 (2004)
(prior acts can show the accused’s bent of mind as
to how sexual partners should be treated; prior acts
can also show an accused’s course of conduct in

5.3.2

reacting to disappointment or anger in such a
relationship).
3.
Woods v. State, 250 Ga. App. 164, 166 (2001) (prior
similar acts by defendant against a previous sexual
partner held admissible).
4.
Thomas v. State, 246 Ga. App. 448 (2000) (in cases
of domestic violence, prior incidents of abuse
against family members or sexual partners are more
generally permitted because there is a logical
connection between violent acts against two persons
with whom the accused had similar emotional or
intimate attachment).
Prior Difficulties. Prior difficulties are relevant past incidents
between the accused and the victim in the present case. Prior
difficulties need not necessarily be similar to the incident for which
the accused is being tried. (Compare Similar Transactions, Section
5.3.1., above.)
A.
No notice or hearing required.
1.
Cooks v. State, 289 Ga. App. 179 ((2008)(prior
difficulties between a defendant and the victim are
not subject to the notice requirements of Uniform
Superior Court Rule 31.1 and 31.3.); McCullors v.
State, 291 Ga. App. 393(2)(2008)(same).
2.
Babb v. State, 252 Ga. App. 518, 519 (2001) (the
court is not required to abide by the pre-trial hearing
requirements for similar transactions set forth in
Uniform Superior Court Rule 31.3 before admitting
evidence of prior difficulties between the defendant
and the victim).
B.
Relevant purpose.
1.
Brown v. State, 278 Ga. 810, 811-812 (2005)
(evidence of the defendant’s prior acts toward the
victim, be it a prior assault, a quarrel, or a threat, is
admissible when the defendant is accused of a
criminal act against the victim).
2.
Benton v. State, 256 Ga. App. 620, 623 (2002)
(evidence of prior difficulties is always admissible
to show bent of mind, intent, and course of conduct
between the accused and the victim).
3.
Cunningham v. State, 243 Ga. App. 770, 771 (2000)
(evidence of prior difficulties between the parties is
admissible if there is a logical, probative connection
between the difficulties and the crimes charged).
4.
Dixson v. State, 269 Ga. 898, 900 (1998) (prior acts
of domestic violence by defendant against his

5:23

C.

D.

E.

F.

5:24

girlfriend were relevant to his abusive course of
conduct in this murder case).
No limiting instruction required unless requested.
1.
Cooks v. State, 289 Ga. App. 179 (2008)(trial court
is not required to give a limiting instruction to the
jury on their consideration of prior difficulties in the
absence of a request).
2.
Benton v. State, 256 Ga. App. 620, 623 (2002)
(where the defendant did not request a limiting
instruction on the prior difficulties evidence, the
trial court did not err in failing to give one sua
sponte).
Similarity not required.
1.
Cunningham v. State, 243 Ga. App. 770, 771 (2000)
(there is no requirement that a prior difficulty be so
similar to the crime charged as to also constitute a
similar transaction); McCullors v. State, 291 Ga.
App. 393(2)(2008)(same).
2.
Dixson v. State, 269 Ga. 898, 900 (1998) (prior acts
of domestic violence against defendant’s girlfriend
were admissible in his trial for murdering her with a
firearm despite the fact that the prior acts did not
involve the use of a weapon; such prior acts were
relevant to show the abusive nature of the
relationship).
3.
Herring v. State, 224 Ga. App. 809, 814 (1997)
(mere fact that prior difficulties between defendant
and his wife occurred in a variety of places and over
different matters did not render such prior acts
irrelevant).
Lapse in time.
1.
Benton v. State, 256 Ga. App. 620, 623 (2002) (the
statute of limitation as to an indicted offense
certainly places no time restrictions on the
introduction of prior difficulties when such
evidence goes to show the intent with which the
indicted act was committed).
2.
Babb v. State, 252 Ga. App. 518, 519 (2001)
(similar offenses occurring eleven and fourteen
years earlier between defendant and his sister held
admissible; lapse in time goes to weight and
credibility, not admissibility).
Prior difficulties in domestic violence cases.
1.
Allen v. State, 284 Ga. 310(2)(2008)(prior DV
incidents between defendant and his ex-girlfriend
admissible in his trial for her subsequent murder).

2.

3.

4.

5.

5.4

Bell v. State, 278 Ga. 69, 71-72 (2004) (prior
difficulties between defendant and his estranged
wife, including his prior threats to kill her, were
properly admitted in this murder case).
Moody v. State, 277 Ga. 676, 678 (2004) (evidence
of prior difficulties was relevant to show the
defendant’s motive, intent, and bent of mind in
committing the act against the victim).
Hayes v. State, 275 Ga. 173, 175 (2002) (evidence
of prior threats, quarrels or assaults by a defendant
against a victim are admissible as prior difficulties
to show motive and intent).
Hawks v. State, 223 Ga. App. 890, 892 (1996)
(photographs showing victim’s injuries from prior
incident of domestic abuse admissible in
defendant’s assault trial to show his course of
conduct).

Defenses and Related Issues
5.4.1 Self Defense.
A.
Justifiable use of force. O.C.G.A. § 16-3-21(a) provides
that “[a] person is justified in threatening or using force
against another when and to the extent that he or she
reasonably believes that such threat or force is necessary
to defend himself or herself or a third person against such
other’s imminent use of unlawful force; however, except
as provided in Code Section 16-3-23, a person is justified
in using force which is intended or likely to cause death or
great bodily harm only if he or she reasonably believes
that such force is necessary to prevent death or great bodily
injury to himself or herself or a third person or to prevent
the commission of a forcible felony.”
B.
Unjustifiable use of force. O.C.G.A. § 16-3-21(b)
provides that “[a] person is not justified in using force
under the circumstances specified in subsection (a) of this
Code section if he:
1.
initially provokes the use of force against himself
with the intent to use such force as an excuse to
inflict bodily harm upon the assailant;
2.
is attempting to commit, committing, or fleeing
after the commission or attempted commission of a
felony; or
3.
was the aggressor or was engaged in a combat by
agreement unless he withdraws from the encounter
and effectively communicates to such other person
his intent to do so and the other, notwithstanding,

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5.4.2

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continues or threatens to continue the use of
unlawful force.
a.
Miller v. State, 273 Ga. App. 761, 762-763
(2005) (although the defendant contended
that he had beaten his wife in self-defense,
the jury was authorized to disbelieve him
based on the extent of his wife’s injuries as
depicted in photographs taken at the scene).
b.
McCracken v. State, 224 Ga. App. 356, 358
(1997) (defendant was not justified in
beating his live-in girlfriend’s face in
response to her act of tossing a bowl of hot
chili on him).
C.
Immunity from prosecution. O.C.G.A. § 16-3-24.2
provides that “[a] person who uses threats or force in
accordance with [Georgia’s law of self defense] shall be
immune from criminal prosecution…”
1.
State v. Yapo, 296 Ga. App. 158(2)(2009)(a
defendant claiming immunity under this statute
must convince the trial court by a preponderance of
evidence at a pre-trial hearing that he was acting in
self defense).
D.
Jury Charge: Justification.
1.
Buice v. State, 281 Ga. App. 595, 598 (2006) (prima
facie case of justification requires a showing that
the victim was the aggressor, that the victim
assaulted the defendant, and that the defendant was
honestly trying to defend himself; thus, defendant
not entitled to justification instruction where two
theories presented at trial were either that defendant
was aggressor or that defendant never touched
victim).
Mutual Combat.
A.
If there was an intention on the part of both the deceased
and the defendant to enter into a fight or mutual combat
and that under these circumstances the defendant killed the
deceased, then ordinarily such killing would be voluntary
manslaughter, regardless of which party struck the first
blow or fired the first shot. (See Suggested Pattern Jury
Instructions, Vol. III, Criminal Cases, 2.03.43.)
1.
Demons v. State, 277 Ga. 724, 726 (2004) (jury
instruction on mutual combat not required where
there was no evidence that defendant and the victim
were both armed with deadly weapons and mutually
intended or agreed to fight).

2.

Brannon v. State, 188 Ga. 15, 17-19 (1939) (the
evidence did not disclose an intent to fight on the
part of the deceased wife who was killed by the
defendant while on Christmas furlough from jail
where he had been serving time for a previous fight
with her).
3.
Eich v. State, 169 Ga. 425 (1929) (where there was
evidence that the defendant and his wife had been
fighting all night and evidence that she may have
shot him first, a charge of voluntary manslaughter
under the theory of mutual combat was required).
5.4.3. Battered Person Syndrome.
A.
O.C.G.A. § 16-3-21(d) provides that “[i]n a prosecution
for murder or manslaughter, if a defendant raises as a
defense a justification provided by subsection (a) of this
Code section, the defendant, in order to establish the
defendant’s reasonable belief that the use of force or deadly
force was immediately necessary, may be permitted to
offer:
1.
Relevant evidence that the defendant had been the
victim of acts of family violence or child abuse
committed by the deceased, as such acts are
described in Code Sections 19-13-1 and 19-15-1,
respectively; and
2.
Relevant expert testimony regarding the condition
of the mind of the defendant at the time of the
offense, including those relevant facts and
circumstances relating to the family violence or
child abuse that are the bases of the expert’s
opinion.
a.
Graham v. State, 239 Ga. App. 429, 431
(1999) (battered person syndrome is not a
separate defense and evidence supporting
this syndrome is admissible only to assist
the jury in evaluating a defendant’s claim of
self-defense under O.C.G.A. § 16-3-21, and
such self-defense is not an issue where the
criminal acts were directed toward nonaggressor victims).
b.
Nguyen v. State, 234 Ga. App. 185 (1998)
(verbal threats alone, unaccompanied by
actual or attempted violence, cannot
authorize reliance upon the battered person
syndrome).
c.
Smith v. State, 268 Ga. 196, 199 (1997)
(battered person syndrome is not a separate

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B.

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defense, but evidence of the syndrome is
relevant as a component of the defense of
justification by self-defense).
d.
Chester v. State, 267 Ga. 9, 11 (1996)
(defendant seeking to rely on the battered
person syndrome must show that she was
previously subjected to acts of actual or
attempted violence committed by the victim,
and not simply verbal threats).
e.
Johnson v. State, 266 Ga. 624, 626 (1996)
(the battered woman syndrome describes a
series of common characteristics that appear
in women who are abused physically and
psychologically over an extended period of
time by the dominant male figure in their
lives).
f.
Chapman v. State, 259 Ga. 706, 707-708
(1989) (evidence of battered woman
syndrome is admissible to show that the
defendant had a mental state necessary for
the defense of justification although the
actual threat of harm does not immediately
precede the homicide).
g.
Smith v. State, 247 Ga. 612, 619 (1981)
(expert testimony admitted to explain why a
person suffering from battered woman’s
syndrome would not leave her mate, would
not inform police or friends, and would fear
increased aggression against herself).
h.
Browne’s (1998) ground breaking study
found that one of the significant
characteristics of abusers who were killed by
their victims is they more frequently raped
or sexually assaulted their partners. (See
Appendix B – Assessing for Lethality)
Jury Charge: Battered Person Syndrome.
1.
In Smith v. State, 268 Ga. 196, 200-201 (1997), the
Georgia Supreme Court recommended the
following jury charge be given if evidence of the
battered person syndrome has been properly placed
before the jury:
I charge you that the evidence that the
defendant suffers from battered person
syndrome was admitted for your
consideration in connection with the
defendant’s claim of self-defense and that

such evidence relates to the issue of the
reasonableness of the defendant’s belief that
the use of force was immediately necessary,
even though no use of force against the
defendant may have been, in fact, imminent.
The standard is whether the circumstances
were such as would excite the fears of a
reasonable person possessing the same or
similar psychological and physical
characteristics as the defendant, and faced
with the same circumstances surrounding
the defendant at the time the defendant used
force.
5.4.4. Prior Violent Acts by Victim.
A.
Notice and hearing requirements.
1.
Uniform Superior Court Rule 31.1. provides that
“[n]otices of … the intention of the defense to
introduce evidence of specific acts of violence by
the victim against third persons, shall be given and
filed at least ten [10] days before trial unless the
time is shortened or lengthened by the judge.”
2.
Uniform Superior Court Rule 31.6(A) provides that
“[t]he defense may upon notice filed in accordance
with Rule 31.1, claim justification and present
during the trial of the pending case evidence of
relevant specific acts of violence by the victim
against third persons.”
3.
Uniform Superior Court Rule 31.6(B) provides that
‘[t]he notice shall be in writing, served upon the
states counsel, and shall state the act of violence,
date, county and the name, address and telephone
number of the person for each specific act of
violence sought to be introduced. The judge shall
hold a hearing at such time as may be appropriate
and may receive evidence on any issue of fact
necessary to determine the request, out of the
presence of the jury. The burden of proving that the
evidence of specific acts of violence by the victim
should be admitted shall be upon the defendant.
The defendant may present during the trial evidence
of only those specific acts of violence by the victim
specifically approved by the judge.”
4.
Uniform Superior Court Rule 31.6(B) provides that
“[n]otice of the State’s intention to introduce
evidence in rebuttal of the defendant’s evidence of
the victim’s acts of violence and of the nature of

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such evidence, together with the name, address and
telephone number of any witness to be called for
such rebuttal, shall be given defendant’s counsel
and filed within five days before trial unless the
time is shortened or lengthened by the judge.”
a.
Williams v. State, 255 Ga. App. 177, 179
(2002) (Uniform Superior Court Rules 31.1
and 31.6 require a defendant to provide the
State with written notice at least ten days
before trial which states the specific violent
act, the date of the act, and the name,
address, and telephone number of the person
involved).
B.
Threshold showing for admissibility.
1.
Williams v. State, 255 Ga. App. 177, 178-179
(2002) (in order to present evidence of prior violent
acts by the victim, a defendant is required to (1)
follow the procedural requirements for introducing
the evidence, (2) establish the existence of prior
violent acts by competent evidence, and (3) make a
prima facie showing of justification).
2.
Peterson v. State, 274 Ga. 165, 167 (2001) (to
make a prima facie showing of justification, a
defendant must show that the victim was the
aggressor, that the victim assaulted the defendant,
and that the defendant was honestly seeking to
defend himself).
5.4.5 Accident.
A.
O.C.G.A. § 16-2-2 provides that “[a] person shall not be
found guilty of any crime committed by misfortune or
accident where it satisfactorily appears there was no
criminal scheme or undertaking, intention, or criminal
negligence.”
1.
Griffin v. State, 262 Ga. App. 87, 89 (2003) (jury
charge not required where defendant denied the act
itself).
5.4.6. Abusive Language.
A.
O.C.G.A. § 16-5-25 provides that “[a] person charged with
the offense of simple assault or simple battery may
introduce in evidence any opprobrious or abusive language
used by the person against whom force was threatened or
used; and the trier of facts may, in its discretion, find that
the words used were justification for simple assault or
simple battery.”
1.
Danzis v. State, 198 Ga. App. 136, 137 (1990) (the
defense of verbal provocation in O.C.G.A. § 16-5-

5:30

25 is limited to the offenses of simple assault and
simple battery; it does not apply to the offense of
battery).
5.4.7. Corporal Punishment.
A.
O.C.G.A. § 16-3-20(3) provides that a person’s conduct
may be justified “[w]hen the person’s conduct is the
reasonable discipline of a minor by his parent or a person
in loco parentis.” (See Section 4.1.2. - Family Violence
Act, above.)
1.
Marshall v. State, 276 Ga. 854, 857 (2003) (what is
reasonable parental discipline may depend upon the
age and physical condition of the child).
2.
Buchheit v. Stinson, 260 Ga. App. 450, 455-456
(2003) (mother’s action of slapping child in
response to child’s disrespectful behavior
constituted reasonable discipline administered in
form of corporal punishment, not simple battery).
3.
Bearden v. State, 163 Ga. App. 434 (1982) (not
error to refuse to give charge on reasonable parental
discipline where defendant’s 5-year old
stepdaughter had bruises on 75% of her face and
25% of her body).
5.4.8 Joint Property, Damage to:
A.
Mack v. State, 255 Ga. App. 210 (2002) (defendant’s
conviction for criminal damage to property upheld despite
the fact that he damaged a car that was jointly titled in his
name and that of his estranged wife).
B.
Ginn v. State, 251 Ga. App. 159, 161 (2001) (a jury could
reasonably conclude that the damaged property, a computer
keyboard, was not the defendant’s property alone, and that
his damaging of it would make him guilty of criminal
trespass).
5.5

Privileges
5.5.1 Characteristics of a Valid Privilege: The communication
originated in confidence, confidentiality is essential to the
relationship, the relationship is one that is publicly recognized, and
disclosure would cause more long term harm than the short term
benefit.
5.5.2 Spousal Testimonial Privilege.
A.
O.C.G.A. § 24-5-503(a) provides that “[h]usband and wife
shall be competent but shall not be compellable to give
evidence in any criminal proceeding for or against each
other.”
B.
§ 24-5-503(b) provides additional exceptions to the general
rule of privilege. The privilege is not available in cases:
where one spouse is charged with a crime against the

5:31

B.

C.

5:32

person of a child under 18; where one spouse is charged
with a crime against the other; where one spouse is charged
with causing physical damage to either marital property or
the separate property of the other; or, where the alleged
crime against a spouse occurred prior to the marriage of the
parties.
1.
Harrison v. State, 238 Ga. App. 485, 486 (1999) (a
spouse who refuses to testify against a defendant by
invoking the marital privilege is "unavailable" for
the purpose of finding necessity under O.C.G.A. §
24-3-1(b) replaced by . O.C.G.A. § 24-8807 (effective January 1, 2013).
2.
State v. Peters, 213 Ga. App. 352 (1994) (the
spousal testimonial privilege may be asserted even
when the marriage was entered into for the explicit
purpose of preventing the spouse’s testimony).
3.
White v. State, 211 Ga. App. 694, 695 (1994) (if a
spouse chooses to testify, it is presumed that she has
waived her spousal testimonial privilege and she
may be cross-examined as any other witness).
4.
Caution: See Crawford v. Washington, Section
5.2.2, A. above (invocation of a marital testimonial
privilege will likely bar the admissibility of all
testimonial statements made by the invoking spouse
notwithstanding so-called necessity exceptions to
the hearsay rule)..
Privilege inapplicable in child cruelty cases. O.C.G.A. §
24-5-503(b)(1) directs that the privilege “shall not apply
in proceedings in which the husband or wife is charged
with a crime against the person of a child under the age of
18, but such husband or wife shall be compellable to give
evidence only on the specific act for which the accused is
charged.”
1.
Beck v. State, 263 Ga. App. 256, 258-259 (2003)
(spousal testimonial privilege would not have been
applicable to relieve wife of duty to testify against
her husband regarding his alleged molestation of his
stepdaughter).
Privilege inapplicable in criminal domestic violence
cases. In criminal cases, a judge may order disclosure if the
evidence is material and relevant to: guilt, degree of guilt,
or sentencing for the offense charged or a lesser included
offense.
1.
This evidence cannot be used to challenge the
victim’s character for truthfulness or untruthfulness.

However, prior inconsistent statements are fair
game.
2.
The probative value of the evidence sought
substantially outweighs the negative effect of the
disclosure of the evidence on the victim.
D.
Privilege inapplicable in civil cases. Evidence is material
and relevant to factual issues to be determined.
1.
This evidence cannot be used to challenge the
victim’s character for truthfulness or untruthfulness.
However, prior inconsistent statements are fair
game.
2.
The probative value of the evidence sought
substantially outweighs the negative effect of the
disclosure of the evidence on the victim.
E.
Privilege belongs to the witness spouse, not the
defendant.
1.
Smith v. State, 254 Ga. App. 107, 108 (2002) (the
privilege of refusing to testify, i.e., the spousal
testimonial privilege, belongs to the witness spouse
and not to the defendant).
F.
No duty to advise victim spouse of her right not to
testify.
1.
Smith v. State, 254 Ga. App. 107, 108 (2002) (court
has no obligation to inform victim spouse of the
spousal testimonial privilege and where a spouse
takes the stand and testifies voluntarily, it is
presumed that she has waived that privilege).
G.
Applicability of privilege to “common law” marriages.
O.C.G.A. § 19-3-1.1 provides that “[n]o common-law
marriage shall be entered into in this state on or after
January 1, 1997. Otherwise valid common-law marriages
entered into prior to January 1, 1997, shall not be affected
by this Code section and shall continue to be recognized in
this state.”
5.5.3. Marital Communications Privilege.
A.
O.C.G.A. § 24-5-501(a)(1) provides that
“[c]ommunications between husband and wife” are
excluded on grounds of public policy.”
B.
The statute has been interpreted to apply only to
“confidential communications” and not to impersonal
communications not made in reliance on the marital
relationship.
1.
Helton v. State, 217 Ga. App. 691, 692 (1995)
(marital communications privilege does not prohibit
testimony by someone who overheard
communications between spouses).

5:33

2.

C.

D.

E.

F.

G.

5:34

Caution: The court should be careful not to confuse
the Marital Communications Privilege with the
Spousal Testimonial Privilege, Section 5.5.1. above.
See, e.g., Webb v. State, 284 Ga. 122 (5)( 2008).
O.C.G.A. § 24-5-503(b)(1) directs that the inter-spousal
communication privilege “shall not apply in proceedings in
which the husband or wife is charged with a crime against
the person of a child under the age of 18, but such husband
or wife shall be compellable to give evidence only on the
specific act for which the accused is charged.”
3.
Pirkle v. State, 234 Ga. App. 23 (1998) (defendant’s
statement to his then-wife not barred by marital
communications privilege where subject matter of
such statement related to defendant’s alleged
molestation of a child).
Privilege inapplicable in criminal domestic violence
cases. In criminal cases, a judge may order disclosure if the
evidence is material and relevant to: guilt, degree of guilt,
or sentencing for the offense charged or a lesser included
offense.
1.
This evidence cannot be used to challenge the
victim’s character for truthfulness or untruthfulness.
However, prior inconsistent statements are fair
game.
2.
The probative value of the evidence sought
substantially outweighs the negative effect of the
disclosure of the evidence on the victim.
Privilege inapplicable in civil cases. Evidence is material
and relevant to factual issues to be determined.
1.
This evidence cannot be used to challenge the
victim’s character for truthfulness or untruthfulness.
However, prior inconsistent statements are fair
game.
2.
The probative value of the evidence sought
substantially outweighs the negative effect of the
disclosure of the evidence on the victim.
Privilege belongs to BOTH spouses.
1.
White v. State, 211 Ga. App. 694, 695 (1994) (the
marital communications privilege, unlike the
spousal testimonial privilege, belongs to both the
communicating spouse and the spouse receiving the
communication, and may extend to confidential acts
as well as verbal communications).
Applicability of privilege to “common law” marriages.
O.C.G.A. § 19-3-1.1 provides that “[n]o common-law
marriage shall be entered into in this state on or after

January 1, 1997. Otherwise valid common-law marriages
entered into prior to January 1, 1997, shall not be affected
by this Code section and shall continue to be recognized in
this state.”
1.
Abrams v. State, 272 Ga. 63, 64 (2003) (evidence
supported trial judge’s conclusion that defendant
and prosecution witness did not have a commonlaw marriage, thus defendant’s statements to the
witness were not privileged).
5.5.4. Privileges of Parties and Witnesses.
A.
O.C.G.A. § 24-5-505(a) provides that a person shall not be
required to incriminate himself or herself or to testify as to
any matter which shall “tend to bring infamy, disgrace or
public contempt upon such party.” However, the Supreme
Court has ruled that this privilege has no application where
“the proposed answer has no effect on the case except to
impair the witness' credibility.” If the testimony is material
and relevant to the issues in the case, the privilege is not
available to the witness.
1.
Glisson v. State, 188 Ga. App. 152, 154 (1988) (a
witness cannot refuse to testify relative to material
matters concerning a crime committed by a member
of her family on the basis that her answer would
bring disgrace, infamy or public contempt upon her
or her family).
5.5.5 Exceptions to Privileges
A.
In order for their to be a waiver, the person holding the
privilege must consent to disclosure. Consent must be
espressed or result from “decisive, unequivocal conduc.”
Silence is not enough. Kennestone Hosp. v. Hopson, 273
Ga. 145, 148 (2000). The person holding the priviledge
makes the information public. In re Paul, 270 Ga. 680, 686
(1999).
B.
A privilege “cannot be invoked for the benefit of other
persons who are strangers to such relationship”. White v.
Regions Bank, 275 Ga. 38,41 (2002).
5.5.6 Family Violence Rape Crisis Privilege O.C.G.A. § 24-5-509
A.
An agent of a program cannot be compelled to disclose any
evidence in a judicial proceeding that the agent either
acquired while providing services to the victim or provided
that such evidence was necessary to enable the agent to
render services.
1.
An agent of a program is an employee or volunteer
that has successfully completed a minimum of 20
hours of training in family violence and sexual
assault intervention and prevention conducted by a

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5.5.7

5:36

Criminal Justic Coordinating Council approved
program.
B.
O.C.G.A. § 24-5-509 (effective January 1, 2013) creates a
new privilege for communications between a family
violence or sexual assault victim and counselors, including
volunteers, providing services to such victims at family
violence shelters and rape crisis centers. However, in both
civil and criminal cases, a party may by motion, compel
the testimony of an agent of a family violence or rape
crisis unit to whom disclosures were made by an alleged
victim upon showing: that the evidence is material and
relevant; that it is not otherwise available; and, that the
probative value of the evidence sought substantially
outweighs “the negative effect of the disclosure on the
victim.” Other than evidence of prior inconsistent
statements, disclosures will not be ordered if the only
purpose of the evidence relates to the alleged victim's
character for truthfulness. If the moving party requests
disclosure on proper grounds, the court is to take the
evidence under seal for in camera review and may order
disclosure of those portions of the evidence which are
proper under the code section.
Prosecution-Based Victim Advocate Work Product Privilege
A.
O.C.G.A. § 17-17-9.1: Communications between a victim
and victim assistance personnel appointed by a prosecuting
attorney and any notes, memoranda, or other records made
by such victim assistance personnel of such communication
are privileged.
1.
These communications are work product of the
prosecuting attorney and are not subject to
disclosure except where such disclosure is required
by law. Such work product shall be subject to other
exceptions that apply to attorney work product
generally.
2.
This statute only applies to “victim assistance
personnel appointed by a prosecuting attorney”.
Victim assistance personnel included employees or
vlunteers acting under direction and authority of the
District Attorney or Solicitor-General. O.C.G.A.
§15-18-14.2, 15-18-20, 15-18-71.
3.
This statute does not apply to employees or
volunteers of non-governmental organizations such
as Non-profit organizations and for profit
organizations. However, these organizations may be
covered by other privileges. O.C.G.A. §§ 24-921(5), (6), (7) & (8); 24-5-503.

5.5.8

5.6

Duration of Privilege
A,
Privilege usually survivies death of holder or other party.
Spence v. Hamm, 226 Ga. App. 357, 358 (1997) (attorney client). Sims v. State, 251 Ga, 877, 881 (1984)
(psychiatrist-patient). Co. v. Boney, 139 Ga. App. 575, 577
(1976) (Spousal).

Experts
5.6.1 Expert Witnesses, In General.
A.
O.C.G.A. § 24-9-67 provides that “[i]n criminal cases, the
opinions of experts on any question of science, skill, trade,
or like questions shall always be admissible; and such
opinions may be given on the facts as proved by other
witnesses.”
B.
O.C.G.A. § 24-7-707 states that “in criminal proceedings,
the opinions of experts on any question of science, skill,
trade, or like questions shall always be admissible; and
such opinions may be given on the facts as proved by other
witnesses.
5.6.2 Expert’s Qualifications.
A.
Moorer v. State, 290 Ga. App. 216 (3) (2008)(licensed
clinical social worker with extensive training and
experience in domestic violence cases was properly
qualified).
B.
Miller v. State, 273 Ga. App. 761, 764 (2005) (witness’ 20
years experience in the field of domestic violence and her
educational background in psychology held sufficient).
C.
Bell v. State, 278 Ga. 69, 72 (2004) (trial court did not
abuse its discretion in qualifying one witness as an expert
while refusing to qualify another).
D.
Caldwell v. State, 245 Ga. App. 630, 633 (2000) ( officer
permitted to testify based on her training and experience
that victim’s wounds were “defensive” ones).
E.
Siharath v. State, 246 Ga. App. 736, 738 (2000) (to qualify
as an expert, generally all that is required is that a person be
knowledgeable in a particular matter; his special
knowledge may be derived from experience as well as
study, and formal education in the subject is not a requisite
for expert status).
5.6.3 Expert Testimony, Subject Matter.
A.
Admissibility of Scientific Principles or Techniques, in
General.
1.
In State v. Tousley, 271 Ga. App. 874, 876 (2005),
the Georgia Court of Appeals held that a scientific
principle or technique is admissible upon a showing
that (1) the general scientific principles and
techniques involved are valid and capable of

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B.

5:38

producing reliable results and (2) the person
performing the test substantially performed the
scientific procedures in an acceptable manner.
(a)
Valid scientific principles or techniques.
(1)
Harper v. State, 249 Ga. 519, 525526 (1982) (the trial judge must
decide whether the procedure or
technique in question has reached a
scientific stage of verifiable
certainty, i.e., whether it “rests upon
the laws of nature”; once a procedure
has been recognized in a substantial
number of courts, a trial judge may
judicially notice, without receiving
evidence, that the procedure has been
established with verifiable certainty).
(2)
Vaughn v. State, 282 Ga. 99(3)
(2007)(Harper test still applicable in
criminal cases despite the adoption
of the Daubert test in Georgia Tort
Reform Act, O.C.G.A. 24-9-67.1).
(b)
Acceptable scientific procedures.
(1)
State v. Tousley, 271 Ga. App. 874,
877 (2005) (if the basic science and
techniques used by the expert are
reliable, the fact that the expert’s
conclusions are weak or subject to a
certain margin of error usually goes
to the weight, not admissibility, but
if the expert substantially departed
from principles and procedures that
are the basis for the evidence’s usual
reliability, the evidence should be
declined).
Dynamics of domestic abuse.
1.
“Battered person syndrome” (See Section 5.4.3,
Self-defense, above.)
(c)
Moorer v. State, 290 Ga. App. 216
(1)(2008)(admission of testimony from an
expert in the area of battered woman
syndrome permissible because it is an area
beyond the ken of the ordinary layperson).
(d)
Alvarado v. State, 257 Ga. App. 746, 748
(2002) (domestic violence expert’s
testimony regarding battered person
syndrome – cycle of violence, delayed

2.

3.

4.

5.

reporting, remaining with abuser - was
beyond the ken of the average layman and
thus admissible to explain the victim’s
behavior).
(e)
Chester v. State, 267 Ga. 9, 13-14 (1996)
(approving the use of expert testimony
regarding the battered person syndrome to
explain conduct of victims of domestic
violence).
“Cycle of violence”.
(a)
Jones v. State, 276 Ga. 253, 255 (2003) (at
the beginning of an abusive relationship, the
abuser is usually repentant; that the longer
such a relationship goes on, the more the
victim blames herself for the problems; that
the episodes of violence do not repeat with
the same frequency and there may be years
between incidents; that it is common for
abusive relationships to end in death or
serious injury).
(b)
Hawks v. State, 223 Ga. App. 890 (1996)
(trial court did not err in permitting expert to
testify regarding the "cycle of abuse" which
characterizes certain relationships in which
repeated domestic violence occurs).
Delayed reporting of abuse.
(a)
Moorer v. State, 290 Ga. 216 (1)
(2008)(expert testimony is admissible to
explain the behavior of a domestic violence
victim who does not report abuse or leave
the abuser).
(b)
Raymond v. State, 232 Ga. App. 228, 229230 (1998) (a psychologist testified that
exposure to family violence might explain
why a child would delay reporting abuse).
Denial of the abuse.
(a)
Hawks v. State, 223 Ga. App. 890, 893
(1996) (expert permitted to testify that in the
“honeymoon” or “remorse” stage of the
cycle of domestic violence, a victim often
will go into denial).
Minimization of the abuse.
(a)
Hawks v. State, 223 Ga. App. 890, 893
(1996) (expert permitted to testify that in the
“honeymoon” or “remorse” stage of the
cycle of domestic violence, a victim often

5:39

6.

7.

8.

9.

5.7

will minimize the violence which has
occurred).
Reluctance to leave the abuser.
(a)
Jones v. State, 276 Ga. 253, 255 (2003) (a
common misconception about domestic
violence is that if a person is hit once, the
person will leave the relationship; the
inability to leave an abusive relationship
applies across the socioeconomic spectrum).
Reluctance to prosecute the abuser.
(a)
Jones v. State, 276 Ga. 253, 255 (2003) (the
victim feels tied to the abuser; that it is
common for victims not to press charges;
that the victim feels the responsibility to
keep the family together).
(b)
Hawks v. State, 223 Ga. App. 890, 893
(1996) (expert permitted to testify that in the
“honeymoon” or “remorse” stage of the
cycle of domestic violence, a victim often
will become reluctant to prosecute her
partner).
Batterer or abuser profile.
(a)
Jones v. State, 276 Ga. 253, 255 (2003)
(profile or syndrome evidence that suggests
that a defendant shares the typical
characteristics of a batterer or an abuser is
inadmissible unless the defendant has placed
his character in issue or has raised some
defense which the syndrome is relevant to
rebut; relevant here to rebut defendant’s
claim of accident).
Non-aggressor victim.
(a)
Pickle v. State, 280 Ga. App. 821, 822-30
(2006) (expert testimony that defendant
suffered from battered person syndrome was
admissible to rebut mental state necessary to
establish intent in trial for child abuse,
battery, and aggravated assault.)

Miscellaneous Issues
5.7.1 Indictments and Accusations.
A.
Surplusage / References to “Family Violence”.
1.
State v. Barnett, 268 Ga. App. 900, 901-902 (2004)
(an indictment for aggravated assault is not subject
to special demurrer because it lists the parenthetical
phrase “family violence” in its title).
B.
Surplusage / References to “Felony”.

5:40

1.

5.7.2

State v. Barnett, 268 Ga. App. 900, 902-903 (2004)
(an indictment for aggravated assault is not subject
to special demurrer because it lists the parenthetical
phrase term “felony” in its title).
B.
Insufficient evidence to prove family relationship.
1.
Gillespie v. State, 280 Ga. App. 243, 245 (2006)
(O.C.G.A. §16-5-23(f) does not appear to cover a
relationship when defendant and victim apparently
had sexual relations but the defendant did not know
the victim was pregnant; further, a showing that the
victim was at most a few weeks into pregnancy and
later “lost” the child leads to reasonable conclusion
that such a recently conceived fetus should not be
considered a “child” under O.C.G.A. § 16-5-23(f)).
C.
Materiality of date.
1.
State v. Swint, 284 Ga. App. 343, 344 (2007)
(accusation charging defendant with family
violence battery and cruelty to children in the
second degree did not allege that the date was
material and the State could offer any evidence
relevant to the crimes during the statutory period of
limitations).
Jury Selection.
A.
Scope of voir dire.
1.
Childers v. State, 228 Ga. App. 214, 215 (1997)
(State may explore jurors’ personal beliefs
concerning domestic violence issues including:
whether (1) some women want to be hit; (2) some
women ask to be hit; (3) the only way to get the
attention of some women is to hit them; (4) hitting,
punching, or kicking someone is an acceptable way
to vent anger or frustration; and (5) the State should
not get involved in domestic and/or family violence
situations).
B.
Excuses for cause.
1.
Park v. State, 260 Ga. App. 879 (2003) (court
should have excused ex-officer who expressed
strong opinions about domestic violence in the
Asian community).
B.
Peremptory challenge.
1.
Floyd v. State, 281 Ga. App. 72 (2006) (prospective
juror’s divorced or childless state is racially-neutral
reason for exercise of peremptory strike).
2.
McKenzie v. State, 294 Ga. App. 376(4)
(2008)(prospective juror’s past experiences with
domestic violence deemed gender neutral).

5:41

5.7.3. Closing Arguments.
A.
Victim’s lack of cooperation.
1.
Simpson v. State, 214 Ga. App. 587, 588 (1994)
(State may argue that domestic violence crimes are
crimes against the state and that a victim’s
cooperation in the prosecution of such cases is not
required).
5.7.4. Verdict.
A.
Inconsistent jury verdict.
1.
Amis v. State, 277 Ga. App. 223 (2006) (Georgia
does not recognize an inconsistent verdict rule, so
acquittal on underlying offense of family violence
battery was not ground to reverse conviction for
cruelty to children in the third degree).
5.7.5 Recusal of Trial Judge.
A.
OCGA §15-1-8(a)(3) provides that “[n]o judge ... shall ...
[s]it in any case or proceeding ... in which he has presided
in any inferior judicature, when his ruling or decision is the
subject of review, without the consent of all parties in
interest.”
2.
Hargrove v. State, 299 Ga. App. 27 (2009)(the fact
that the trial judge had granted the victim’s request
for a temporary restraining order against the
defendant was not alone sufficient to require his
recusal at the defendant’s subsequent trial for FV
aggravated battery).

5:42

A.

APPENDIX A - DYNAMICS OF DOMESTIC VIOLENCE

Table Of Contents
A.

The Blind Men And The Elephant… ...................................................... A:2

B.

What Is Domestic Violence? .................................................................. A:2

C.

Who Perpetrates Domestic Violence? .................................................... A:3

D.

Are There Different Kinds Of Perpetrators? ........................................... A:4

E.

What Causes Domestic Violence? .......................................................... A:4

F.

Are There Different Kinds Of Domestic Violence? ............................... A:5

G.

What’s The Difference Between Episodic Or Situational Couple Violence
And Intimate Terrorism?......................................................................... A:6

H.

In An IT Or Battering Relationship, What Are The Different Forms Or
Tactics Of Abuse? ................................................................................... A:6

1.

Control. ................................................................................................... A:6

2.

Physical Abuse ........................................................................................ A:7

3.

Sexual Abuse .......................................................................................... A:7

4.

Emotional Abuse and Intimidation. ........................................................ A:8

5.

Isolation................................................................................................... A:9

6.

Verbal Abuse: Coercion, Threats, and Blaming. ................................... A:9

7.

Economic Abuse. .................................................................................... A:9

I.

Most Other Forms Of Abuse Aren’t Criminal Acts. As A Judge, Why
Should I Be Concerned? ....................................................................... A:10

J.

So How Can I Discern Whether Violence Is Occurring Within A Context
Of Control? ........................................................................................... A:10

K.

What About When Victims Take The Perpetrator’s Side, Ask The Court
To Dismiss A TPO Or Remove Conditions Of Bond? ......................... A:11

L.

What Steps Can I Take To Increase The Safety Of The Victim And His Or
Her Family? .......................................................................................... A:12

A:1

A.

The Blind Men And The Elephant…
The story of the blind men and the elephant originated in India.
Several blind men are asked to describe an elephant by feeling different
areas of its body. The man touching a leg describes a pillar while the one
near the ear says it’s a fan, and so on. The story illustrates that truth can
be relative, and this is particularly applicable to a discussion of domestic
violence. Efforts to develop “coordinated community responses” can be
hampered by their relative perspective of the truth. Each system is
designed to address or respond to a specific aspect of the domestic
violence episode and thus people working in different systems see
completely different aspects of domestic violence. Advocates working in
shelters or answering hotlines see and hear about the most harrowing
examples of abuse and torture. In contrast, police officers are often called
to break up “domestic disputes” that seem mutually combative, and
sometimes trivial. When people from different systems come together to
discuss domestic violence, it can seem like they are speaking different
languages altogether.

B.

What Is Domestic Violence?
There is no single, universally accepted definition of domestic
violence. Social service providers and community advocates usually take
a broad view emphasizing a pattern of abusive behaviors including various
forms of controlling tactics such as threats, manipulation and verbal abuse.
In fact, researchers such as Johnson and Stark focus on intimidation and
control as primary elements of domestic violence (Johnson 2006, Stark
2007). Many other researchers, in contrast, focus on a specific form of
violence such as physical abuse. However such a limited focus on
physical violence summarily dismisses other forms of control that can be
detrimental. Similarly, with the exception of stalking, most statutory
definitions of domestic violence emphasize acts of physical or sexual
violence rather than emotional abuse (Mills), suggesting a somewhat
gendered view of domestic violence where strength is correlated with the
ability to control and harm physically and sexually.
Generally speaking, domestic violence can be broadly defined as
maltreatment that takes place in any interpersonal relationship, whether
heterosexual or homosexual. The violence may be emotional,
psychological, physical, sexual, or economic abuse and is most often
about one person in the relationship using any means to control the other.
Stalking and cyber-stalking are also being recognized as forms of intimate
partner abuse.
How domestic violence is defined influences our understanding of
everything from causation to dynamics to prevalence to interventions.
The variance in definitions, theories of etiology and resulting research

A:2

have led to ongoing confusion and debate about the nature of domestic
violence.
C.

Who Perpetrates Domestic Violence?
This depends on how domestic violence is defined. Since the start
of the shelter movement in the 1970s, the issue of domestic violence has
been conceptualized as male initiated violence directed towards female
intimate partners in an attempt to coerce or control them. This
conceptualization of violence has been incredibly important in terms of
shaping public awareness and public policy regarding domestic violence,
but many researchers believe it has led to a false framing of the issue.
These researchers assert that domestic violence is a human problem, and
the particular role of gender in the cause, perpetration and consequences of
partner violence cannot be assumed.
When domestic violence is characterized as criminal behavior or a
threat to physical safety, research suggests the perpetrators are
overwhelmingly male. “Crime victimization” studies utilizing the
National Violence Against Women Survey, National Crime Survey, and
National Crime Victimization Survey focus on assaults that individuals
either perceive or report as a crime. These studies reveal that domestic
violence is “rare, serious, escalates over time, and is primarily perpetrated
by men” (Kimmel, 2002). Most often thought of when the term domestic
violence is utilized, this patterned use of physical abuse plus controlling
and coercive behaviors represents the phenomenon seen in shelter
populations and many criminal courts, where the violence represents a
man’s attempt to dominate and control his partner. In this model, the
violence is purposeful and is meant to intimidate and control the female
partner. As such, it is not generally confined to physical violence and
routinely involves severe emotional abuse, intimidation, and likely will
result in severe injury for the woman (Johnson, 2000).
However, when domestic violence is narrowly defined as a discrete
act of physical abuse between intimates, many studies reveal that women
engage in these acts as frequently as men. “Family conflict” studies,
which rely on self-reporting using the conflict tactics scale (CTS)
developed in the 1970s by Straus, Gelles and Steinmetz, show the use of
violence that is not coercive or controlling and is gender balanced. In this
model, couples may engage in physical violence with one another in the
context of a specific argument, but the violence is not meant to control the
other person and is likely to be bi-directional or mutual (Johnson, 2000).
Similarly, studies using the CTS show this form of domestic violence
occurs more frequently, does not escalate in severity, and is gender
symmetrical (Kimmel, 2002). In fact, some research shows rates of female
initiated violence in intimate relationships are equivalent to or even exceed
male rates (Stets and Straus 1992).

A:3

D.

Are There Different Kinds Of Perpetrators?
The literature on male batterers has consistently supported the idea
that they are not a homogenous group and can be classified into three
distinct subtypes: (1) family-only (approximately 50% of batterers)- the
least violent subgroup, these men engage in the least amount of marital
violence, report the lowest levels of psychological and sexual abuse, are
the least violent outside the home, and evidence little or no
psychopathology; (2) dysphoric/borderline (approximately 25% of
batterers)- these men engage in moderate to severe marital violence, their
violence is primarily confined to their wife (although some outside
violence may also be present), they are the most psychologically
distressed and the most likely to evidence borderline personality
characteristics; and, (3) generally violent/antisocial (approximately 25%
of batterers)- these men are the most violent subtype, engaging in high
levels of marital and extrafamilial violence, and they are the most likely to
evidence characteristics of antisocial personality disorder (HoltzworthMunroe & Stuart, 1994 p. 481-482). The emerging literature on female
batterers suggests that women may also be distinguished from one another
on constructs similar to those of male batterers [e.g., women who were
violent towards their partner only (PO) versus women who were generally
violent (GV) (Babcock, Miller & Saird, 2003)].
Men’s use of violence against women is long-established, serious
and often life threatening, but ignoring the role of women as perpetrators
in domestic violence or referring them to intervention programs designed
for male offenders is short-sighted. It remains important to view the issue
of domestic violence through the widest lens possible when considering
who perpetrates domestic violence. Issues of frequency, severity,
chronicity, and level of injury are critical to parse out, as are patterns of
abusive behaviors. Gender aside, considering a criminal act of domestic
violence without understanding its context in the relationship between
victim and perpetrator can have dangersous consequences.
What’s needed is an improved understanding of the etiology of
both men’s and women’s aggression. Ultimately, despite decades of
intervention efforts with battered women and more than a decade of
intervention efforts with batterers, domestic violence remains the most
common cause of non-fatal injury to women in the U.S. (Kyriacou et al.,
1999). No matter how domestic violence is defined, women suffer more
frequent and severe injury as a result of domestic violence than men
(Straus).

E.

A:4

What Causes Domestic Violence?
Multiple theories have emerged in the last several decades to
explain the causes of domestic violence. For example, “social learning”

theories focus on behavior witnessed in childhood. “Conflict theory”
assumes that among groups of people, including families, conflict is
inevitable and can sometimes rise to violent conflict. “Feminist theory”
emphasizes patriarchy which supports men’s efforts to get and keep
control over their female partners. “Attachment theory” suggests the
strength and type of attachment bond to be significantly associated with
the use of violence in the home (Bond & Bond, 2004; Carney & Buttell,
2005; Carney & Buttell, 2006; Dutton, 1995). Each theory has its
proponents, as well as detractors, and each can point to empirical evidence
or research to support their view (Cunningham, et al 1998).
As Cunningham notes, the many theoretical paradigms of domestic
violence should be considered “additive rather than competing” with each
contributing something to our understanding of its prevention and
intervention. For example, early theories which characterized domestic
violence as a mental illness have been mostly discredited. However,
newer research by both Kernberg and Dutton has found a high incidence
of personality disorders among batterers, particularly repeat offenders.
Typical intervention programs are unlikely to produce consistent
behavioral changes among people with these disorders (Brown), which
suggests a gap in program offering for domestic violence perpetrators who
exhibit multiple issues (substance abuse, mental illness, etc.).
F.

Are There Different Kinds Of Domestic Violence?
Some researchers assert that there are different types of domestic
violence. The most helpful distinction in terms of understanding dynamics
may be between sporadic or episodic violence, sometimes known as
“common couple violence” or “situational couple violence” (Johnson,
1995), and an ongoing pattern of abusive behavior also known as
“battering” “systemic abuse,” or “intimate terrorism.”
Johnson developed his typology of domestic violence based on the
context and motive of the perpetrator. Specifically, Johnson (1995)
developed an argument suggesting that domestic violence as the result of
our patriarchal culture involving men using violence to subordinate
women, and domestic violence as a form of conflict resolution used
equally by men and women in intimate relationships are both
conceptualizations of violence but are different phenomenon. Situational
Couple Violence (SCV), as its name implies, occurs when someone
engages in abusive behavior to gain control of a particular situation.
Intimate Terrorism (IT) is when physical violence is used with other
tactics to gain and keep control over the other person. Violent Resistance
occurs when a victim of IT engages in abusive behavior against the
perpetrator of IT. Mutual Violent Control (MVC) describes a relationship
in which both parties engage in abusive behavior in an effort to control the
other.

A:5

G.
What’s The Difference Between Episodic Or Situational Couple Violence And
Intimate Terrorism?
Some acts of physical abuse occur without an overall context of
control in the relationship. Known as episodic violence or situational
couple violence, this type of violence refers to the phenomenon captured
in the national family violence surveys, where the violence is not coercive
or controlling and is gender balanced. In this model, couples may engage
in physical violence with one another in the context of a specific
argument, but the violence is not meant to control the other person and is
likely to be bi-directional or mutual (Johnson, 2000). This behavior tends
to be more frequently witnessed, tends not to escalate in severity or
frequency over time, and tends not to result in severe injury or death.
(Johnson). This may be the type of domestic violence illustrated in family
conflict studies using the CTS.
By contrast, domestic violence which is more chronic and severe
frequently occurs within a context of power and control. Intimate
terrorism, (also known as battering or systemic abuse) defined as physical
abuse plus a broad range of tactics designed to exert general control over
the victim, does tend to escalate in severity and frequency over the course
of the relationship and represents a man’s attempt to dominate and control
his partner.
H.
In An IT Or Battering Relationship, What Are The Different Forms Or Tactics Of
Abuse?
When the people think about domestic violence, it is usually in
terms of physical assault that results in visible injuries to the victim. This
is only one type of abuse. There are several categories of abusive
behavior, each of which has its own devastating consequences. Lethality
involved with physical abuse may place the victim at higher risk, but the
long-term destruction of personhood that accompanies other forms of
abuse is significant and cannot be minimized.
1.
Control. Controlling behavior is a way for the batterer to maintain his
dominance over the victim. Controlling behavior, the belief that he is
justified in the controlling behavior and the resultant abuse is the core
issue in abuse of women. It is often subtle, almost always insidious,
and pervasive. This may include, but is not limited to:
a)
Checking the mileage on the odometer following her use of
the car.
b)
Monitoring phone calls, using caller ID or other number
monitoring devises, not allowing her to make or receive
phone calls.
c)
Not allowing her freedom of choice in terms of clothing
styles, makeup or hairstyle. This may include forcing her

A:6

2.

3.

to dress more seductively or more conservatively than she
is comfortable.
d)
Calling or coming home unexpectedly to check up on her.
This may initially start as what appears to be a loving
gesture, but becomes a sign of jealousy or possessiveness.
e)
Invading her privacy by not allowing her time and space of
her own.
f)
Forcing or encouraging her dependency by making her
believe that she is incapable of surviving or performing
simple tasks without the batterer or on her own.
g)
Using the children as spies in order to control the mother as
spies; threatening to kill, hurt or kidnap the children;
abusing the children physically or sexually; and threatening
to call Child Protective Services if the mother leaves the
relationship.
Physical Abuse. According to the AMEND Workbook for Ending
Violent Behavior, physical abuse is any physically aggressive behavior,
withholding of physical needs, indirect physically harmful behavior, or
threat of physical abuse. This may include, but is not limited to:
a)
Hitting, kicking, biting, slapping, shaking, pushing, pulling,
punching, choking, beating, scratching, pinching, pulling
hair, stabbing, shooting, drowning, burning, hitting with an
object, threatening with a weapon, or threatening to
physically assault.
b)
Withholding of physical needs, including interruption of
sleep or meals, denying money, food, transportation, or
help if sick or injured, locking victim in or out of the house,
refusing to give, or rationing necessities.
c)
Abusing, injuring, or threatening to injure others like
children, pets, or special property.
d)
Forcible physical restraint against her will, being trapped in
a room, having her exit blocked, or being held down.
e)
Hitting or kicking walls, doors, or other inanimate objects
during an argument, throwing things in anger, destruction
of property.
f)
Holding the victim hostage.
Sexual Abuse. New research has shed light on what those working
with battered women have known for years: the high occurrence of rape
in physically abusive relationships. Taylor et.al. (2007) reports that
two-thirds of the women in their study who were physically assaulted,
also were raped by their abuser(s). A study of dating violence also
showed considerable overlap between physical and sexual abuse (White
& Smith 2004). DeKeseredy (2006) indicates that leaving a marital or
cohabitating relationship increases a woman’s chance of being sexually
assaulted. Sexual assault perpetrated by a current partner is more
traumatic for the victim than sexual assault perpetrated by a former

A:7

4.

A:8

partner or non-intimate. (Temple et.al., 2007). Sexual abuse is using
sex in an exploitative fashion or forcing sex on another person. Having
consented to sexual activity in the past does not indicate current
consent. Sexual abuse may involve both verbal and physical behavior.
This may include, but is not limited to:
a)
Using force, coercion, guilt, or manipulation or not
considering the victim’s desire to have sex. This may
include making her have sex with others, have unwanted
sexual experiences, or be involuntarily involved in
prostitution.
b)
Exploiting a victim who is unable to make an informed
decision about involvement in sexual activity because of
being asleep, intoxicated, drugged, disabled, too young, too
old, or dependent upon or afraid of the perpetrator.
c)
Laughing or making fun of another’s sexuality or body,
making offensive statements, insulting, or name-calling in
relation to this victim’s sexual preferences/behavior.
d)
Making contact with the victim in any nonconsensual way,
including unwanted penetration (oral, anal or vaginal) or
touching (stroking, kissing, licking, sucking or using
objects) on any part of the victim’s body.
e)
Exhibiting excessive jealousy resulting in false accusations
of infidelity and controlling behaviors to limit the victim’s
contact with the outside world.
f)
Withholding sex from the victim as a control mechanism.
Also, refusing to say, “I love you.”
Emotional Abuse and Intimidation. According to the AMEND
Workbook for Ending Violent Behavior, emotional abuse is any
behavior that exploits another’s vulnerability, insecurity, or character.
Such behaviors include continuous degradation, intimidation,
manipulation, brainwashing, or control of another to the detriment of
the individual. This may include, but is not limited to:
g)
Insulting or criticizing to undermine the victim’s selfconfidence. This includes public humiliation as well as
actual or threatened rejection.
h)
Threatening or accusing, either directly or indirectly, with
intention to cause emotional or physical harm or loss. For
instance, threatening to kill the victim or himself, or both.
i)
Using reality distorting statements or behaviors that create
confusion and insecurity in the victim, such as saying one
thing and doing another; stating untrue facts as truth; and
neglecting to follow through on stated intentions. This can
include denying the abuse occurred and/or telling the
victim she is making up the abuse. It might also include
what is “crazy making” behaviors such hiding the victim’s
keys and berating her for losing them.

j)

5.

6.

7.

Consistently disregarding, ignoring, or neglecting the
victim’s requests and needs.
k)
Using actions, statements or gestures that attack the
victim’s self-esteem and self-worth with the intention to
humiliate.
l)
Telling the victim that she is mentally unstable or
incompetent.
m)
Forcing the victim to take drugs or alcohol.
n)
Not allowing the victim to practice her religious beliefs,
isolating her from the religious community, or using
religion as an excuse for abuse.
o)
Using any form of coercion or manipulation that is
disempowering to the victim.
Isolation. Isolation is a form of abuse often closely connected to
controlling behaviors. It is not an isolated behavior, but the outcome of
many kinds of abusive behaviors. By keeping her from those she wants
to see, doing what she wants to do, setting and meeting goals, and
controlling how she thinks and feels, he is isolating her from the
resources (personal and public) that may help her leave the relationship.
By keeping the victim socially isolated he is cutting her off from those
who might not reinforce his perceptions and beliefs. Isolation often
begins as an expression of his love for her with statements such as: “If
you really loved me you would want to spend time with me, not your
family.” As it progresses, the isolation expands, limiting or excluding
her contact with anyone but the batterer. Eventually, she is left totally
alone and without the internal and external resources to change her life.
Some victims isolate themselves from existing resources and support
systems because of the shame of bruises or other injuries, his behavior in
public, or his treatment of friends or family. Self-isolation may also
develop from fear of public humiliation or from fear of harm to herself or
others. The victim may also feel guilty for the abuser’s behavior, the
condition of the relationship, or a myriad of other reasons, depending on
the messages received from the abuser.
Verbal Abuse: Coercion, Threats, and Blaming. Verbal abuse is
any abusive language used to denigrate, embarrass, or threaten the
victim. This may include, but is not limited to:
a)
Threatening to hurt or kill the victim or her children,
family, pets, property or reputation.
b)
Name-calling (“ugly,” “bitch,” “whore,” or “stupid”).
c)
Telling victim she is unattractive or undesirable.
d)
Yelling, screaming, rampaging, terrorizing, or refusing to
talk.
Economic Abuse. Financial abuse is a way to control the victim
through manipulation of economic recourses. This may include, but is
not limited to:

A:9

a)

b)

c)

Controlling the family income, and either not allowing the
victim access to money or rigidly limiting her access to
family funds. This may also include keeping financial
secrets or hidden accounts, putting the victim on an
allowance or allowing her no say in how money is spent, or
making her turn her paycheck over to him.
Causing the victim to lose a job or preventing her from
taking a job. He can make her lose her job by making her
late for work, refusing to provide transportation to work, or
by calling/harassing her at work.
Spending money for necessities (food, rent, utilities) on
non-essential items (drugs, alcohol, stereo equipment,
hobbies).

I.
Most Other Forms Of Abuse Aren’t Criminal Acts. As A Judge, Why Should I
Be Concerned?
Emotional abuse, verbal abuse, isolation and economic abuse can
be used in concert with occasional physical abuse or threats to force victim
compliance with the abuser’s wishes. Termed “coercive control” by Evan
Stark, this has been found by researchers to be “a more accurate measure
of conflict, distress and danger to victims than the presence of physical
abuse” (Beck & Raghavan, 2010). Thus it is impossible to appreciate a
victim’s vulnerability or risk without sufficient information regarding the
context of domestic violence. Decisions, ranging from bond conditions to
temporary protective orders to custody and visitation, should be made with
as much information regarding the type and extent of domestic violence at
issue in the relationship.
J.
So How Can I Discern Whether Violence Is Occurring Within A Context Of
Control?
It may not always be possible to determine whether a particular
case involves intimate terrorism and a context of control, but assessing for
lethality factors is critical. Judges can ask law enforcement officers about
the presence of lethality factors, and encourage them to include these
factors in police reports. Judges also can make an effort to gain access to
the perpetrator’s criminal history for use in fully evaluating the situation
and potential danger. In certain settings, such as the ex parte TPO
hearing, the judge can ask the victim questions about the violence or the
context of the relationship; this type of questioning should not be done,
and would not be productive, in a setting in which the perpetrator is
present. Judges can also take a leadership role and ask for coordination
between advocates and prosecutors’ offices; domestic violence advocates
are trained to work with and recognize lethality factors and contexts and
types of domestic violence.

A:10

There are assessments for danger and lethality; they are not
foolproof but can be helpful tools for assessing a victim’s risk of being
killed. (See Appendix B for a more detailed discussion of lethality
factors). One such tool is Jacquelyn Campbell’s danger assessment, which
asks victims whether or not a number of factors, such as increase in
frequency of violence, weapons, strangulation, drugs, alcohol, threats,
controlling behaviors, jealousy, suicidal thoughts or attempts, were
involved during violence incidents over the past year (Campbell et al,
2003). The best way to assess a domestic violence situation is by keeping
in mind that context is key, that greater injuries do not necessarily indicate
greater danger. Also, follow intuition; sometimes a particular combination
of factors or details of factors leads you to feel that there is greater risk.
K.
What About When Victims Take The Perpetrator’s Side, Ask The Court To
Dismiss A TPO Or Remove Conditions Of Bond?
There are a number of different reasons why victims and survivors
may not “cooperate” with the court system. The best way to learn about a
victim’s motivation is to listen.
When situations can be classified as intimate terrorism, survivors
may recant or voluntarily contact a perpetrator after receiving a TPO
against him because of economic dependence on the perpetrator, or
because they believe that being conciliatory will avert another assault.
Denial and minimization can also be evidence of trauma. Some victims
suffer from post-traumatic stress disorder (PTSD), which may make them
less able to cooperate with law enforcement or to follow through with
court orders or pressing criminal charges.
In other situations, such as situational couple violence, victims
may not cooperate with law enforcement officers and prosecutors because
they do not want the options given to them by those officials. When the
domestic violence is not accompanied by a context of power and control
or by a history of abuse, victims may not want to have the perpetrator
arrested or press charges because they believe, and studies have shown,
that such violence can be curbed by other means such as counseling, or
because the incident was a one-time act. In other instances, even if there
has been a history of violence, the victim may love his or her perpetrator
and may want other options and a chance to make the relationship work.
It should be noted that there is an ideology of victimization that
encourages the criminal justice system to treat people who have been hit
or threatened by a partner—regardless of context—as someone incapable
of assessing the situation for themselves. It also believes those victimized
need guidance and urging to make the “right” decision to end the
relationship and criminally punish the perpetrator. Even though this
answer uses the word “victim” to denote the person who was injured in the

A:11

incident and “perpetrator” to denote the person who injured in the
incident, it is important to remember that many actors are not “victims” or
“perpetrators” in the traditional sense. The best way to assess a situation,
to determine whether an injured party is uncooperative out of fear or out
of frustration at being talked down to as a “victim,” is to listen. Be sure
that a victim is questioned separately from the perpetrator, in case he or
she and the perpetrator have an intimate terrorism relationship. Doing so
would be stressful or dangerous for the victim. Pay attention to context
(Mills, 2008).
L.
What Steps Can I Take To Increase The Safety Of The Victim And His Or Her
Family?
The most important step that a judge can take to increase the
victim’s safety is to assess the context of the domestic violence incident by
looking for lethality factors or other evidence of coercive control. Using
that analysis, be aware that a lack of injury does not necessarily mean that
a victim is safe since physical abuse can taper off when the abuser has
achieved control over the victim. During custody or visitation hearings,
the judge can also ensure that agreements are careful and precise. If a
victim and a perpetrator need to meet in order to drop off or pick up
children in common, the agreement should specify a safe location, such as
a police or fire department. It should be specific, so as not to allow the
perpetrator to place the victim or children in any danger, and so as not to
allow the children to be used to place the victim in a dangerous situation.
During bond hearings, the judge can order specific bond conditions, such
as no contact, or the use of a monitoring device, in order to increase the
victim’s safety and protection from the perpetrator.






A:12

To increase the victim’s safety at the courthouse, judges should
consider the following:
Connect a victim with a local domestic violence advocate who will help the
victim engage in safety planning and attend the victim’s court hearings;
Order a safety check if the victim does not show up for a hearing;
Consider detaining the perpetrator in the courtroom until after the victim leaves a
hearing;
Provide victims with updated information on their cases to minimize appearances
in court, thus reducing the chances of placing her in further danger.
Encourage the court and the sheriff’s department to create safe places within the
courthouse where there is private space to speak with advocates.
Encourage training for sheriff departments on how to keep domestic violence
victims and perpetrators apart during court hearings to keep victims safe (being
available to walk or escort victims into and out of the courthouse for hearings,
keeping perpetrators away from victims, etc.). (WomensLaw.org, Safety in
Court.)



To increase victims’ safety and perpetrators’ accountability, broader
steps can be taken through a coordinated community response . Such
steps include:
Participate in a local domestic violence task force by assessing criminal justice
resources and practices, promoting consistency and collaboration among response
systems, and creating formal and informal networks for communication and
collaboration across systems (GCFV, 2008).
Encourage prosecution, local domestic violence advocates, and law enforcement
to form a collaborative group to assist with information sharing, cross-training,
and transitioning of cases through the justice system (GA Fatality Review, 2007).
As part of task forces, ensure that agencies have a brochure or informational
packet that includes a list of victims’ rights and legal remedies informing victims
about domestic violence (GA Fatality Review, 2007).
As part of task forces, provide assistance to local and state governing agencies to
revise policies and procedures related to the agencies under their jurisdictions to
ensure that response, outreach and education efforts include culturally sensitive,
culturally relevant, and language accessible content (GA Fatality Review, 2007).

A:13

B.

APPENDIX B - ASSESSING FOR LETHALITY

Table Of Contents
Introduction ..........................................................................................................B:2
A.

Lethality Factor List .................................................................................B:3

B.

Lethality Factors ......................................................................................B:3

Quantitative Lethality Factors (timing, frequency and severity of
violence) ...................................................................................................B:3
1.
Attempted strangulation ...............................................................B:3
2.
Sexual assault ...............................................................................B:4
3.
Increase in violent attacks ............................................................B:4
4.
Threats to kill ...............................................................................B:4
5.
Access to firearms ........................................................................B:4
6.
Animal or Pet Abuse ....................................................................B:4
Qualitative Lethality Factors (behaviors related to abuser’s desire for
power and to control victim) ....................................................................B:5
1.
2.
3.

Controlling/jealous behavior ........................................................B:5
Victim’s efforts to leave/sever relationship .................................B:5
Depression/thoughts of suicide (on the part of the
abuser) ..........................................................................................B:5
4.
Victim’s terror ..............................................................................B:5
5.
Harassment/stalking-type behavior ..............................................B:5
Environmental Lethality Factors..........................................................................B:5
1.
2.
3.
4.
C.

Unemployment .............................................................................B:5
Substance abuse ...........................................................................B:6
Access to victim ...........................................................................B:6
Pregnancy.....................................................................................B:6

Practical Application of Lethality Factors ...............................................B:6

Police Reports ......................................................................................................B:6
Temporary Protective Orders ...............................................................................B:6

B:1

Introduction
“Men of all ages and in all parts of the world are more
violent than women…When it comes to violence, women
can proudly relinquish recognition in the language,
because here at least, politically correct would be
statistically incorrect.”
--Author Gavin DeBecker on his use of male, genderspecific language in The Gift of Fear.

There are many efforts to determine which factors indicate an
increased risk for homicide in domestic violence cases. The bottom line is
that there is no single factor or set of factors that can be used as fail-proof
indicators in assessing lethality. Yet several factors have emerged from
research that can be considered significant in contributing to an increased
risk for serious injury or homicide. The National Institute of Justice, in its
November 2003 issue on the Assessment of Risk factors for intimate
partner homicide, has found that among women who reported being
subject to domestic violence, those who had been threatened or assaulted
with a gun were 20 times more likely to be killed than other women, and
those who were threatened with murder were 15 times more likely to be
killed than other women. Research indicates that a combination of factors,
instead of a single factor, increase the risk of intimate partner homicide.
The research cited in this section refers specifically to intimate partner
homicide, which does not include elder or child abuse. An “intimate
partner” is defined as spouse, ex-spouse, boyfriend, girlfriend, exboyfriend or ex-girlfriend.
Margaret Zahn (2003) advises that although research has come a
long way in determining the risk factors associated with intimate partner
homicide, there is a disconnect between our social policies and our
knowledge of these factors. She urges us to do a better job of linking the
two if we are to resolve this social problem. Zahn believes intimate
partner homicides and other homicides will decrease when the criminal
justice system and victim service organizations focus on these risk factors.
Lethality factors can be useful courtroom tools. The best source of
information for judges is the police report. If the police report doesn’t
specifically address lethality factors, judges can ask law enforcement
about their presence or absence, which in turn would encourage police to
put the factors into the police reports directly. Lethality factors can be
helpful in determining bond conditions and issuing temporary protection
orders. When using lethality factor analysis, it is important to consider
context over the presence of physical violence; threats coupled with other

B:2

non-physical lethality factors may indicate a more dangerous situation
than one alone involving physical violence. A lethality factor analysis can
assist judges in more thoroughly assessing the context in which domestic
violence occurs, and in better anticipating danger and violence.

A.

Lethality Factor List
Quantitative Lethality Factors (severity and amount of prior
violence)
Attempted strangulation
Sexual assault
Increase in violent attacks
Threats to kill
Access to firearms
Animal or pet abuse
Qualitative Lethality Factors (behaviors related to abuser’s desire for power and
to control victim)
Controlling/jealous behavior
Victim’s efforts to leave/sever relationship
Depression/thoughts of suicide
Victim’s terror
Harassment/stalking-type behavior
Environmental Lethality Factors
Unemployment
Substance abuse
Access to victim
Pregnancy

B.

Lethality Factors
Quantitative Lethality Factors (timing, frequency and severity of fviolence)
1.
Attempted strangulation
A 2003 National Institute of Justice report found that women who were
subject to domestic violence, and who had been the victims of attempted
strangulation, were 10 times more likely to be killed than other women
(NIJ Journal, No. 250)
A 2008 Journal of Emergency Medicine study found that 43 percent of
women who were murdered in domestic assaults and 45 percent who were
victims of attempted murder had previously been choked by their male
partners.
In 2010 Ohio and New York drafted legislation to join the majority of
states in criminalizing strangulation or choking as a felony (Bello, 2010).

B:3

2.
3.

4.

5.

In Georgia, strangulation would fall under the simple assault statute,
OCGA §16-5-20.
Sexual assault
Increase in violent attacks
When an abusive partner increases the frequency of his violent acts, this
poses a high risk of violence to the victim and to the abuser.
No matter how severe the most recent act of violence, the occurrence of an
incident within 30 days of that violence places the woman at high risk of
being killed or of killing the abuser.
It is important to remember that there need not be a long history of
violence; even the first incident of domestic violence can be fatal.
Threats to kill
A 2003 National Institute of Justice report found that women who were
subject to domestic violence, and were threatened with murder, were 15
times more likely to be killed than other women (NIJ Journal, No. 250).
In more than half of the cases reviewed by the Georgia Domestic
Violence Fatality Review Project, threats to kill the primary victim were
documented before the homicide. These threats cannot be dismissed as
mere words; they must be taken seriously by victims and service providers
alike.
Access to firearms
A 2003 National Institute of Justice report found that women who were
subject to domestic violence, and were threatened or assaulted with a gun,
were 20 times more likely to be killed than other women (NIJ Journal,
No. 250).
When a gun was in the home, women were six times more likely to be
killed by their abuser than other women in abusive relationships.
Research also suggests that abusers who possess guns “tend to inflict the
most severe abuse.”

6.

The Georgia Domestic Violence Fatality Review Project found that of all
of the deaths studied from 2003 to 2009, the majority were committed
with firearms (2009).
Animal or Pet Abuse
A 1997 study found that 71% of pet owners entering domestic violence
shelters reported that the batterer had threatened, injured, or killed family
pets (Ascione, F.R., Weber, C.V. & Wood, D.S. (1997). The abuse of
animals and domestic violence: A national survey of shelters for women
who are battered. Society & Animals 5.3: 205-218)
A 2007 study found that batterers who abuse pets use more forms of
aggressive violence, such as sexual violence, marital rape, emotional
violence, and stalking, and demonstrate a greater use of controlling

B:4

behaviors (Simmons, C & Lehmann, P. Exploring the Link Between Pet
Abuse and Controlling Behaviors in Violent Relationships. Journal of
Interpersonal Violence 22.9 (2007):1211-1222
Pet abusers are more likely to be domestic violence abusers, to have been
arrested for other violent crimes and drug related offenses, and engage in
other delinquent behavior. Many abusers have a history of animal abuse
that preceeds domestic violence towards their partner. (Ascione, F.R.,
Weber, C.V., Thompson, T.M., Heath, J., Maruyama, M., Hayashi, K.
Battered Pets and Domestic Violence: Animal Abuse Reported by Women
Experiencing Intimate Violence and Nonabused Women, Violence Against
Women 13.4 (2007): 354-373 and Weber, C.V. A Descriptive Study of the
Relationship Between Domestic Violence and Pet Abuse. Dissertation
Abstracts International. Section B: The Sciences and Engineering. 59.80B (1999).
Qualitative Lethality Factors (behaviors related to abuser’s desire for power and
to control victim)
1.
Controlling/jealous behavior
2.
Victim’s efforts to leave/sever relationship
The Georgia Domestic Violence Fatality Review found that in almost all
domestic violence cases reviewed from 2003 to 2007, victims had
indicated a desire to separate from their abusers just before the homicide –
whether filing for a protective order, moving out and getting an apartment,
or talking with family about leaving (2007).
3.
Depression/thoughts of suicide (on the part of the abuser)
The Georgia Domestic Violence Fatality Review found that in cases from
2004 and 2006, 38 percent of the perpetrators attempted or completed
suicide at the homicide scene or soon after. In 29 percent of the cases, the
perpetrator had a history of depression or was depressed.

4.
5.

In a majority of the cases from 2004 to 2009, friends and family were
aware of the perpetrator’s suicidal threats and attempts, but did not
understand how the perpetrator’s threats to hurt himself could impact the
safety of the victim and others.
Victim’s terror
Harassment/stalking-type behavior
Of the cases reviewed by the Georgia Domestic Violence Fatality Review
Project from 2003 to 2009, 43 percent of homicide victims were stalked
by their abusers before their murders. In many of these cases, stalking
escalated after separation.

Environmental Lethality Factors
1.
Unemployment

B:5

2.

3.
4.
C.

Jacquelyn C. Campbell (2003) found the abuser’s lack of employment to
be the strongest environmental risk factor for intimate partner homicide,
increasing the risk fourfold.
Substance abuse
Sharps et al (2003) studied the connection between alcohol and drug use
during, and in the year leading up to, an intimate partner homicide (or
attempted murder), and found the following:
Very high levels of alcohol and drug use were seen in males who
murdered or attempted to murder their partners;
In the year before the homicide or life-threatening abuse of their
female partner, 80 percent of the male abusers were problem
drinkers.
Homicide and attempted homicide abusers were described as drunk
every day or as a problem drinker or drug user.
Two-thirds of the homicide and attempted homicide offenders used
alcohol, drugs, or both during the incident.
The research shows that when a male abuser is a problem drinker or drug
user, his female partner is in a particularly dangerous situation. It also
indicates that serious alcohol use by abusers increases the risk for a deadly
incident to occur.
Access to victim
Pregnancy

Practical Application of Lethality Factors
The majority of victims who are abused by their intimate partners
use the criminal justice system as their first line of defense. Most often
that is a call to the police, but for many it is through the civil courts when
they file a petition for a civil protective order. This points to the court’s
power to intervene through their policies and practices and attitudes to
prevent intimate partner homicides. The following is a list of suggestions:
Police Reports
The best source of information regarding lethality factors present in a
violent situation is the police report. Judges can ask law enforcement
about the presence or absence of lethality factors.
Work with law enforcement to encourage the development of a procedure
for documenting lethality factors in police reports.
Temporary Protective Orders
Lethality factor analysis can be helpful in assessing the context in which
domestic violence occurs, and in better anticipating danger and violence.
Remember to consider the presence of lethality factors in addition to the
severity of the act of violence when making decisions. Assaults or threats,
coupled with other non-physical lethality factors, may indicate a more
dangerous situation than one that includes more physical violence.

B:6

Be aware that by seeking a temporary protective order (TPO), a victim is
signaling that his or her situation could be serious in spite of the lack of
previous documentation.
When interviewing a TPO petitioner during the ex parte hearing know the
indicators that signal an increased risk for homicide and ask the petitioner
the appropriate questions to determine that risk.
In cases of very high risk (where a victim is planning to leave a very
jealous and controlling partner with whom he or she lives) it is important
to warn her not to confront her partner with that information and make an
immediate referral to an advocate who can help her develop a safety plan.
In high risk situations, restrict the abuser’s access to guns. A recent study
(Bridges, Tatum and Kunselman, 2008) revealed that limiting firearm
availability once a protective order has been served may help to reduce
family homicide rates. The study found that in 47 states, there was an
inverse correlation between family homicide rates and states mandating
firearm restrictions during a protective order.
Either through the prosecutor’s office or the local shelter, have an
advocate who is immediately accessible to victims of intimate partner
violence. It may be the only opportunity to provide them with resources
for their safety.
Provide a list of local resources for anyone seeking seeks to file a
temporary protective order.

B:7

C.

APPENDIX C - SCREENING FOR DOMESTIC
VIOLENCE
Many domestic relations cases involve violence. That these cases involve
domestic violence is often unknown to the court or to the attorneys
representing the parties. This lack of knowledge can result in court
decisions that are at worst, life-threatening, and at best continue to allow
the abuser control over the victim.

For that reason it is important for attorneys and the court to screen domestic relations
cases carefully and take the appropriate safety precautions if violence is suspected.
This appendix offers simple questions to screen for the presence of
domestic violence, general issues to consider in any order where violence
is suspected.
A.

Determining if Domestic Violence is an Issue.
The following questions have been condensed from Screening for Domestic
Violence: Meeting the Challenge of Identifying Domestic Relations Cases
Involving Domestic Violence And Developing Strategies for Those Cases (Court
Review, Special Section on Domestic Violence, Vol. 39, Issue 2, Summer 2002).

B

Screening for Common Domestic Violence Patterns.
5.
Does your partner criticize you or your children often?
6.
Has your partner ever tried to keep you from getting medical help; kept
you from sleeping at night?
7.
Has your partner ever hurt or threatened to hurt your pets or destroyed
your things? Does your partner throw or break things during
arguments?
8.
Is it hard for you to have relationships with friends or relatives because
your partner disapproves of, argues with or criticizes them?
9.
Does your partner make it hard for you to keep a job or to go to school?
10.
Has your partner ever put his hands on you against your wishes, or
forced you to do something you didn’t want to do?
11.
When was the first time this happened? The last time it happened?
The worst time?

C:1

D.

APPENDIX D - CHECKLIST FOR EX PARTE
APPLICANTS

1.

2.

3.

4.
5.
6.
7.
8.
9.
10.
11.
12.
13.

The following questions are intended to assist the court in addressing
issues that may exist in any ex parte application. More reliable
information is obtained if the court personally asks these or other
questions. Obviously, questions not relevant to the issues in a petition
should be excluded.
Are there past or pending court actions in any court involving any of
the parties, children or other issues presented in this case? Examples:
a)
Criminal charges
b)
Divorce
c)
Child custody (between these or other parties)
d)
Juvenile Court
e)
Paternity
f)
Legitimation
g)
Adoption
h)
Child support
i)
Landlord – Tenant
j)
Other
Are there present or past investigations involving any of the parties or
children involved in this case? Examples:
a)
Police or other law enforcement investigation
b)
Probation
c)
Pretrial Diversion
d)
Safety Plans
e)
Department of Family and Children Services
Are there present or past Family Violence Protective Orders, Stalking
Orders, or Bond Orders limiting contact or applications for any such
orders that involve parties or children involved in this petition?
Does the respondent have access to weapons?
Does an attorney represent either party at this time, in this, or any
related matter?
Who currently has physical possession of the children at issue?
Has there been a change in the party who has physical possession of the
children in the last 12 months?
Have criminal warrants been taken by either party or by law
enforcement that include either party to this petition?
Have police reports been made of incidents recited in this petition?
Who owns real property, which is at issue in the petition?
Who has had possession of that real property during the last 12 months?
Who owns automobiles, which are at issue in this petition?
Who has had possession of such automobiles during the last 12
months?

D:1

14.

15.
16.
17.

18.
19.
20.
21.
22.

Are there unnamed third parties who have or claim an interest in any
child or property address in the petition? Examples:
a)
Grandparents
b)
Biological Parents
c)
Guardians or Guardians ad litem
d)
Foster Parents
Has either party to the petition been diagnosed with a psychological or
psychiatric disorder?
What medication does that party take?
Who recommended that you file this petition? Examples:
a)
Attorney
b)
Law enforcement officer
c)
District Attorney
d)
Social service caseworker
e)
Family member
Was either party consuming alcohol or drugs before or during the
incidents recited in the petition?
Has either party been accused of drug abuse, violation of drug laws, or
DUI during the past 24 months?
If yes: what drug or drugs are involved?
What is the employment status of all parties to the petition?
Does the petitioner have the support and assistance of an advocate? If
not, consider making that referral.
In 2004, over 20,000 orders of protection were filed in Georgia. Given
how many orders are filed and how chronically-abused parties are
exceptionally keen at reading unconscious and nonverbal communication
(Herman, 1992), it may prove helpful to the court to review a unique study
on the power of judicial demeanor and how it encourages or discourages
parties from claiming their rights under the law (Ptacek, 1999).
For comprehensive information on previous orders filed by either party,
see Section 3.5.4, B., 3. and Appendix M – Georgia Protective Order
Registry

D:2

E.

APPENDIX E - FIREARMS

Table Of Contents
A.

Firearms And Temporary Protective Orders............................................ E:3

1.

Gun restrictions can be ordered in ex parte orders. ................................. E:4

2.

Twelve Month Family Violence Protective Orders issued in
Georgia trigger the federal firearms restrictions. ..................................... E:5

3.

Some stalking orders trigger the federal firearms restrictions. ................ E:5

4.

The firearms restriction is in effect for the term of the TPO. .................. E:6

5.

There are statutory exemptions for military and law
enforcement.............................................................................................. E:6

6.

Federal law preempts any state order regarding firearms. ....................... E:6

7.

The Federal Protections Can Be Entered Through Other Types
of Orders. ................................................................................................. E:6

8.

Judges Should Put Respondents On Notice About the Federal
Firearms Restrictions. .............................................................................. E:7

9.

Reporting TPO Orders ............................................................................. E:7

10.

Constitutional Challenges To These Restrictions Have Failed................ E:8

11.

Important Safety Considerations: ............................................................ E:8

B.

Misdemeanor Crimes of Domestic Violence and Federal Firearms
Prohibitions .............................................................................................. E:9

1.

Persons who have been convicted in any court of a qualifying
misdemeanor crime of domestic violence (MCDV). ............................... E:9

2.

The misdemeanor does not have to be identified as a “domestic
violence misdemeanor” to trigger the restriction. .................................. E:10

3.

Georgia’s battery statute meets the requirements for a
misdemeanor crime of domestic violence.............................................. E:10

4.

A nolo contendere plea does not trigger the federal firearms
restrictions. ............................................................................................. E:10

5.

First Offender status does not trigger the federal firearms
restrictions. ............................................................................................. E:10

6.

The length of the restriction. .................................................................. E:11

7.

There is no exception for use of a gun by military or law
enforcement personnel. .......................................................................... E:11

E:1

8.

Gun restrictions can be included in conditions of bond. ........................ E:11

9.

It is recommended that the court address the issue of firearms
in a misdemeanor case involving domestic violence. ............................ E:12

10.

To ensure that the federal safety provisions re firearms apply in
a specific criminal case: ......................................................................... E:12

11.

To ensure the victim’s safety: ................................................................ E:12

12.

Firearm Statistics: .................................................................................. E:13

C.

Georgia Firearm Legisation……………………………………………E:14

1.

Safe Carry and Protection Act…………………………………………E:14

2.

"Stand Your Ground" Laws…………………………………………...E:15

3.

Domestic Violence and Firearms……………………………………...E:15

D.

State Restrictions on Firearms in Domestic Violence…………………E:15

1.

Introduction……………………………………………………………E:15

2.

Louisiana………………………………………………………………E:15

3.

Washington……………………………………………………………E:16

4.

Minnesota……………………………………………………………...E:16

5.

Wisconsin……………………………………………………………...E:16

E.

Forms Attached: ................................................................................... E:156

E:2

A.

I.

Firearms And Temporary Protective Orders
A person1 who is subject to a qualifying protection order under federal law is
generally prohibited from possessing any firearm or ammunition (18 U.S.C. §
922(g)(8)). Violation of this prohibition while the order is in effect is a federal
offense punishable by up to ten years in prison (18 U.S.C. § 924(a)(2)).
Generally, a respondent, subject to a protective order that includes one
element (indicated by a diamond) from each section listed below, is covered
by the federal firearms prohibition.
HEARING

II.

Defendant/Respondent received actual notice and had an opportunity to
participate.

INTIMATE PARTNER
Plaintiff/Petitioner is an intimate partner of the Respondent,
(18 U.S.C. § 921(a)(32)); that is:



III.

RESTRAINS FUTURE CONDUCT

IV.

a spouse of Respondent;
a former spouse of Respondent;
an individual who is a parent of a child of Respondent; or
an individual who cohabitates or has cohabited with Respondent.

The order restrains Defendant/Respondent from harassing, stalking, or
threatening the intimate partner, child of the Respondent, or child
of the Respondent’s intimate partner; or
The order restrains Respondent from engaging in other conduct
that would place the intimate partner in reasonable fear of bodily injury to
the partner or child.

CREDIBLE THREAT OR PHYSICAL FORCE

The order includes a finding that Respondent is a credible threat
to the physical safety of the intimate partner or child; or
The order, by its terms, explicitly prohibits the use, attempted use, or threatened
use of physical force against the intimate partner or child that would reasonably
be expected to cause bodily injury.

1

See law enforcement and military exceptions, subsection 5 below.

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1.

Gun restrictions can be ordered in ex parte orders.
The Georgia Family Violence Act, O.C.G.A. § 19-13-1 through 19-13-6,
gives a judge the discretion to order firearms restrictions in ex parte
protective orders to ensure that the domestic violence will not re-occur.
O.C. G.A. § 19-13-3(b) states: “Upon filing of a verified petition in which
petitioner alleges with specific facts that probable cause exists to establish
that family violence has occurred in the past and may occur in the future,
the court may order such temporary relief ex parte as it deems necessary
to protect the petitioner or minor of the household from violence.”
[Emphasis added.] Federal firearms restrictions do not apply to ex parte
orders because the respondent has not had notice or an opportunity to be
heard.
A recent study (Bridges, Tatum and Kunselman, 2008) revealed that
limiting firearm availability once a protective order has been served may
help to reduce family homicide rates. Across 47 States, they found that
family homicide rates went down in States mandating firearm restrictions
during a temporary protective order.
Recommended Practice: Order a respondent to turn over all firearms and
weapons to the deputy or police officer at the time of service.
Example #1: (Used in Athens-Clarke County)
“It is further ordered that law enforcement (sheriff or police department)
shall take and maintain possession of firearm(s) that are in the possession
of the Respondent until the expiration of this Order. Detailed description
of firearm(s) and location:_____________________”
Example #2 (Used in Lumpkin County)
"Further: The Respondent is to immediately surrender to law enforcement
any weapons owned by Respondent or in the actual or constructive
possession of the Respondent regardless of ownership of the same. Failure
of the Respondent to surrender such weapons will authorize law
enforcement to arrest and incarcerate without bond the Respondent until
further order of the court. Based upon the evidence presented to the court,
this term and condition of this Order authorizes law enforcement to search
the Respondent or any area under the control of the Respondent for the
sole purpose of locating and taking custody of weapons.
Upon seizing and taking custody of weapons, law enforcement is ordered
to surrender said weapons to the property and evidence officer of the
Lumpkin County Sheriff Department whereupon it is ordered that said
weapons be held and stored under the above-captioned and numbered case
until further order of this court."

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Recommended Practice: Include language in Ex-Parte Orders stating that
the respondent shall not possess or own firearms or ammunition while the
Order is in effect.
Example: "It is further ordered that because the Respondent presents a
credible threat to the physical safety of the Petitioner and/or her children,
the Respondent shall not possess any firearm or ammunition during the
effective period of this order."
2.

Twelve Month Family Violence Protective Orders issued in
Georgia trigger the federal firearms restrictions.
Almost all second hearing TPOs in Georgia make the respondents subject
to the federal firearms restrictions. 1
Recommended Practice: To insure that a TPO order qualifies, be sure to:
a)
use the standardized forms, which include PCO numbers
for easy entry into the TPO registry;
b)
initial paragraph 26 of the standard Twelve Month Order
form (2008) to confirm that the parties have the
relationship required for federal law to apply (18 U.S.C.
922(g)).2 Refusal to sign this language does not mean that
the federal restrictions don’t apply; however, it creates
more work for screening authorities to determine whether
the order meets the federal standards.

3.

Some stalking orders trigger the federal firearms restrictions.
Only stalking cases where the parties are spouses, ex-spouses, have a
common child, or live or have lived together in an intimate relationship,
meet the federal requirements for a protective order that imposes federal
firearms restrictions. These cases are an exception to the Rawcliffe v.
Rawcliffe decision, 283 Ga. App. 264 (2007), which involved unrelated
parties.
Recommended Practice: When issuing a Stalking Order where the
parties are spouses, ex-spouses, have a common child, or live or have
lived together in an intimate relationship, and there is concern about the
1

Except a respondent who carries a duty-issued weapon as military or law enforcement
personnel. See subsection 5.
2
Standard form paragraph 25 states: “Petitioner/protected party is either a spouse,
former spouse, parent of
a common child, Petitioner’s child, child of Respondent, cohabitates or has cohabitated
with Respondent and qualifies for 18 U.S.C. 922(g). It is further ordered that the
Respondent shall
not possess or purchase a firearm or ammunition as restricted by federal law under 18
U.S.C. 922(g)((8).”

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petitioner’s safety, be sure that the relationship is spelled out in the order
and include language finding a threat to physical safety. This will insure
that the federal firearms restrictions apply to the stalker. To empower
local law enforcement to enforce the firearms restrictions, order the stalker
not to have possession of a firearm or ammunition. This is basically a
restatement of the federal restrictions, but the fact that it is in a state order
will enable local law enforcement to enforce the federal restriction without
needing to get federal enforcement agents involved.
4.

The firearms restriction is in effect for the term of the TPO.

5.

There are statutory exemptions for military and law enforcement.
18 U.S.C. § 925(a) provides that the restrictions on firearms possession by
respondents shall not apply to government-issued firearms that are used by
military or police officers in the line of duty. Only official duty firearms
are covered.
Recommended Practice: Order an abuser in the military or law
enforcement to notify his/her superior officer of the TPO. This will insure
that supervision and restrictions on firearms use are implemented by the
government entity.

6.

Federal law preempts any state order regarding firearms.
If the four qualifications are met, the restriction automatically applies and
overrides any state order to the contrary. In those cases, a state order
carving out exceptions will not protect the respondent from prosecution
for violating federal law.

7.

The Federal Protections Can Be Entered Through Other Types of
Orders.
Any order that meets the four pronged test for a qualified protective order
will subject a respondent to firearms restrictions. The name of the order is
not important.
Recommended Practice: Include language in bail/bond orders, first
offender probation requirements, divorces, custody cases or other orders in
which the respondent/defendant has notice and the safety of a party or
minor children is an issue. Consider the following language:
“Respondent/Defendant shall not harass, stalk, threaten, or
injure the protected party or put the protected party in fear of
bodily injury. It is further ordered that because the
Respondent/Defendant presents a credible threat to the
physical safety of the protected party, the
Respondent/Defendant shall not possess any firearm or
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ammunition. The Respondent/Defendant’s relationship to the
protected party is ______________.”
If this provision is included in the order, be sure to notify the FBI so that
the order will be catalogued in the national registry to prohibit firearm
sales. (See Section 9 below).
8.

Judges Should Put Respondents On Notice About the Federal
Firearms Restrictions.
Federal regulations require any state receiving grant money for certain
domestic violence work (“STOP Grants”) to have judicial policies and
practices in place to notify abusers of the federal firearms restrictions.
Georgia receives this grant money. Therefore, a standardized system of
notifying respondents/defendants of this restriction is necessary.
Recommended Practice:
a)
Asking about firearms possession from the bench ensures
that the answer is given under oath. It will also alleviate
any misconception that the petitioner has caused the
restriction from possessing firearms to be imposed.
b)
When entering a twelve month TPO or any order meeting
federal requirement for firearms restrictions, inform the
respondent of this restriction from the bench. Also be sure
that the notice is in the written order. (Notice is already
included in standard TPO forms (2008).)

9.

Reporting TPO Orders
One of the main purposes of the firearms restrictions is to stop abusers
from obtaining firearms to use against family members. To be sure that
gun sellers know about the TPO, it needs to be filed in the Georgia
Registry, which passes the information to NICS (National Instant Criminal
Background Check System). The court can facilitate this process by:
a)
Using the standard TPO forms, which include the
mandatory language and include PCO numbers that
facilitate entry into the TPO Registry;
b)
Signing paragraph 26 to confirm that the relationship
between the parties meets the federal guidelines;
c)
Insuring that the Superior Court Clerk is entering the TPO
into the Georgia Registry expediently (within 24 hours);
d)
Contacting NICS directly if the court has a non-TPO order
or if there is difficulty registering the TPO with the Georgia
Registry.
Phone: 1-877-444-NICS (6427)
By fax: 1-888-550-6427
Electronically:
NICS website: http://www.fbi.gov/hq/cjisd/nics.htm.
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NICS e-check: http://www.nicsezcheckfbi.gov/
NICS email: a_nics@leo.gov
10.

Constitutional Challenges To These Restrictions Have Failed.
The federal firearm prohibitions against abusers have been universally
upheld, despite challenges based upon:
a)
b)
c)
d)
e)
f)

11.

The Second Amendment
Due Process (5th and 14th Amendments) (notice)
Vagueness/Overbreadth
Ex Post Facto Clause (pre-1996 convictions)
Commerce Clause (jurisdictional element)
Tenth Amendment (no interference with state rights)

Important Safety Considerations:
a)

b)

c)

d)

3

“When a gun [is] in the house, an abused woman [is] 6
times more likely than other abused women to be killed.”
(Campbell 2003) 3
In each year from 1980 to 2000, 60% to 70% of batterers
who killed their intimate partners used firearms (Rothman
2005).4
When domestic violence abuse involves a firearm, the
victim is 12 times more likely to die than in incidents not
involving a firearm (Frattaroli 2006).5
These national firearm statistics hold true for Georgia. “Of
all the deaths studied over the past four years, the majority
have been committed with firearms.” ( Georgia Domestic
Violence Fatality Review Project, 2007).

Jacquelyn C. Campbell et al., Assessing Risk Factors for Intimate Partner Homicide,
NIJ Journal, Nov. 2003, at 15,16, 18.
4
Emily F. Rothman, et.al., Batterers’ Use of Guns to Threaten Intimate Partners, 60 J.
Am. Med. Women’s Ass’n 62 (2005).
5
Shannon Frattaroli & Jon S. Vernick, Separating Batterers and Guns, 30 Evaluation
Rev. 296,297 (2006)

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B.

Misdemeanor Crimes of Domestic Violence and Federal Firearms Prohibitions
1.
2.

Persons who have been convicted in any court of a qualifying
misdemeanor crime of domestic violence (MCDV).
Generally are prohibited under federal law from possessing any firearm or
ammunition in or affecting commerce (or shipping or transporting any
firearm or ammunition in interstate or foreign commerce, or receiving any
such firearm or ammunition). This prohibition also applies to federal,
state, and local governmental employees in both their official and private
capacities. Violation of this prohibition is a federal offense punishable by
up to ten years imprisonment. See 18 U.S.C. § 922(g)(9); see also 18
U.S.C. §§ 921(a)(33), 924(a)(2), 925(a)(1); 27 C.F.R. §§ 178.11, 178.32.

A qualifying MCDV is an offense that meets the following tests:

Is a misdemeanor under federal or state law;

Has as an element the use or attempted use of physical force,
or the threatened use of a deadly weapon;

At the time the MCDV was committed, the defendant was:

A current or former spouse, parent, or guardian of

the victim; or

A person with whom the victim shared a child in

common; or

with the victim as a
or

a spouse, parent, or

A person who was cohabiting with or had cohabited
spouse, parent, or guardian;
A person who was or had been similarly situated to
guardian of the victim; and



Meets the following Due Process requirements:
Either defendant was represented by counsel or knowingly and intelligently
waived the right to counsel; and
IF the person was entitled to a jury trial under Georgia law, the case was
either tried by jury or the defendant knowingly and intelligently waived the
right to jury trial.

EXCEPTIONS:
These restrictions DO NOT apply if the conviction was set aside or expunged; the
person was pardoned; or, the person’s civil rights – the right to vote, sit on a jury,
and hold elected office – were restored (if the law of the applicable jurisdiction
provides for the loss of civil rights under such an offense) UNLESS:

The expungement, pardon, or restoration of civil rights expressly provides
that the person may not ship, transport, possess, or receive firearms; or
The person is otherwise prohibited by Georgia or local law from receiving or
possessing any firearms.

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For further information about Section 922(g)(9) or Federal Firearms Prohibitions
generally, contact your local Field Division of the Bureau of Alcohol, Tobacco
and Firearms by calling (800) 800-3855.
The misdemeanor does not have to be identified as a “domestic
violence misdemeanor” to trigger the restriction.

3.

Any misdemeanor that has as an element the use or attempted use of
force or the attempted use of a deadly weapon will qualify if the
defendant and the victim are related as required by the statute (18 U.S.C.
§ 921(a)(33)(A)).6 The misdemeanor does not need to have “domestic
violence” in the title or in the description of the crime, and an intimate
partner relationship does not have to be an element of the crime (United
States v. Hayes). 7
Georgia’s battery statute meets the requirements for a
misdemeanor crime of domestic violence.

4.

In U.S. v. Griffith, 455 F. 3d 1339 (2006), cert. den. 127 S. Ct. 2028
(2007), the Eleventh Circuit determined that the Georgia battery statute
satisfied the “physical force” requirement of 18 U.S.C. § 921(a)(33)(A)(ii)
[defining the requirements for a misdemeanor crime of domestic violence
for the purpose of the firearms restrictions in 18 U.S.C. § 922(g)(9).]
5.

A nolo contendere plea does not trigger the federal firearms
restrictions.
See 1998 Op. Att’y Gen. 98-2. Because a nolo contendere plea is not a
guilty plea for the purpose of affecting civil disqualifications (such as
voting, holding public office, or acting as a juror), it also does not
disqualify a defendant from possessing a firearm.
Recommended Practice: When considering whether to accept a nolo
contendere plea, consider whether the protections of the federal firearms
statutes would make the victim safer. If so, consider refusing to accept
such a plea, or adding language to the terms of probation which restrict the
defendant’s access to firearms.

6.

First Offender status does not trigger the federal firearms
restrictions.
Under O.C.G.A. §42-8-60, a court may defer a judgment of guilt and place
a defendant on first offender status. If the defendant successfully
6

A spouse, former spouse, parent of a common child, a person who cohabited with the
victim as a spouse, parent or guardian, or has been similarly situated to a spouse, parent
or guardian of the victim. 18 U.S.C. §921(a)(33)(A).
7
United States v. Hayes, 129 S. Ct. 1079 (2009).

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completes the terms of the probation, the defendant is discharged without
an adjudication of guilt. O.C.G.A. §42-8-62. With no adjudication of
guilt, the first requirement to qualify as a misdemeanor crime of domestic
violence is not met.
Recommended Practice: Order that the defendant not possess firearms
or ammunition during the term of the first offender probation. If the
victim’s safety is in jeopardy, consider not accepting a first offender plea.
7.

The length of the restriction.
The restriction on possessing, purchasing, shipping, transporting, or
receiving firearms or ammunition lasts until such time as the defendant’s
civil rights are restored, or s/he is pardoned or the record is expunged.

8.

There is no exception for use of a gun by military or law
enforcement personnel.
The exception for these professions is only for those who are subject to
TPOs, not for criminal convictions involving domestic violence.

9.

Gun restrictions can be included in conditions of bond.
However, because the defendant does not yet have a criminal conviction,
the bail/bond order needs to follow the requirements for a protective order:
“Defendant shall not harass, stalk, threaten, or injure the
protected party or put the protected party in fear of bodily
injury. It is further ordered that because the Defendant
presents a credible threat to the physical safety of the
protected party, the Defendant shall not possess any firearm
or ammunition. The Respondent/Defendant’s relationship to
the protected party is ______________.”
Recommended Practice: Include this language in standardized bond
forms. In every bond hearing involving parties who know each other,
consider the advisability of ordering that the defendant not have access to
firearms or ammunition while on bond. Research shows that the most
dangerous time for a victim of domestic violence is when she attempts to
leave the relationship (U.S. Dept of Justice, 1995).8 Adding this language
to standardized forms will ensure that the issue is addressed at all
bail/bond hearings. See Form B at the end of this section

8

National Crime victimization survey by the U.S. Department of Justice showed that the
rate of women killed by their husbands was 25 times higher when women were separated
than when they were living together. Bureau of Justice Statistics Special Report: Violence
Against Women: Estimates from the Redesigned Survey, NCJ-154348 (1995).

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10.

It is recommended that the court address the issue of firearms in a
misdemeanor case involving domestic violence.
Federal regulations require that states receiving STOP grant money must
certify that its “judicial policies and procedures include notification to
domestic violence offenders of the requirements delineated in section
922(g)(8) and (g)(9).” To meet these qualifications, the Georgia Criminal
Justice Coordinating Counsel urges the court to:
a)
Notify the defendant by a verbal statement on the record;
and/or
b)
Notify the defendant in writing on the sentencing sheet;
and/or
c)
Include the restrictions as a standardized check box on all
documents.
d)
Raise the issue at every stage of hearing:
 Pre-trial hearings
 Entry of pleas
 Sentencing
 Probation and/or parole hearings
Recommended special language for written notices:
The Department of Justice suggests the following:
“If you are convicted of a misdemeanor crime involving violence where
you are or were a spouse, intimate partner, parent, or guardian of the
victim or are or were involved in another, similar relationship with the
victim, it may be unlawful for you to possess or purchase a firearm,
including a rifle, pistol, or revolver, or ammunition, pursuant to federal
law under 18 U.S.C. 922(g)(9).”

11.

To ensure that the federal safety provisions re firearms apply in a
specific criminal case:
Be sure the sentencing sheet:
a)
Clearly identifies the relationship between the defendant
and the victim.
b)
Specifies that use or attempted use of physical force or
threatened use of a deadly weapon has been proven.
c)
Addresses representation by counsel and trial by jury.

12.

To ensure the victim’s safety:
a)
b)
c)
d)
e)

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Verbally advise the defendant of firearms restrictions
Discuss how the defendant will meet that requirement.
Have defendant sign an acknowledgement of firearms
restrictions. This is useful in the event of a violation.
Include identifying information on sentencing sheet.
Consider ordering surrender of firearms, licenses and
permits.

f)
g)
h)
i)

13.

Have third party sign Acknowledgement of Responsibility
if firearms are being transferred to family or friends.
Order firearms to be relinquished as condition of probation
or parole.
Employ a compliance mechanism to ensure firearms are
surrendered.
Notify firearms licensing authorities of disqualifying
convictions. (See Section A.9 above)..

Firearm Statistics:
a)

b)

c)

d)

“In Georgia, firearms were the cause of death in 76% of the
domestic violence fatalities in both 2009 and 2010.”
(GCFV 2011)9
Women are twice as likely to be shot and killed by intimate
partners as they are to be murdered by strangers using any
type of weapon. (Rothman 2005).10
When domestic violence abuse involves a firearm, the
victim is 12 times more likely to die than in incidents not
involving a firearm (Frattaroli 2006).11
These national firearm statistics hold true for Georgia.
“Firearms continue to be the leading cause of death for
victims in reviewed cases, greater than all other methods
combined.” (Georgia Domestic Violence Fatality Review
Project, 2010)

C.Georgia Firearm Legislation
1.Safe Carry Protection Act of 2014
In 2014, the Georgia Legislature passed H.B. 60, sweeping legislation
that increases the places in which Georgia residents can carry weapons.
The bill includes provisions that allows residents with concealed carry
permits to take bars into places such as: bars, churches, school zones,
and government buildings.
Specifically, the law allows school staffers to carry guns in school
zones, leaders of religious congregations to choose to permitted gun
holders in houses of worship, and allows permitted gun holders to carry

9

Georgia Commission on Family Violence, Georgia Coalition Against Domestic
Violence (2011). 2010 Georgia Domestic Violence Fatality Review Annual Report and
fatality counts.
10
Rothman E. F., Hemenway D, Miller M, and Azael D. Batterers' Use of Guns to
Threaten Intimate Partners. Journal of the American Medical Women's Association,
2005. 60 (1): p. 62- 68.
11
Shannon Frattaroli & Jon S. Vernick, Separating Batterers and Guns, 30 Evaluation
Rev. 296,297 (2006)

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weapons into government buildings without security at the entrance.
The law takes effect on July 1, 2014.
2.“Stand Your Ground” Laws
Prior to the passage of the Safe Carry Protection Act, Georgia enacted
what is known as a “Stand Your Ground” law in 2006. O.C.G.A. 16-323.1 states that a person who uses force in self-defense, in defense of
others, in defense of their home, or in defense of property has no duty
to retreat and has the right to “stand his or her ground” and use force,
including deadly force.
This provision provides important self-defense protections in instances
of domestic violence. Though traditional self-defense requires that one
retreat, if there is the ability to do so, prior to using force, in a domestic
violence situation, that might require that a victim leave his or her
home. The Georgia “Stand Your Ground” law gives victims the right
to remain in their homes and defend themselves against abuse,
regardless of whether they have the ability to retreat.
3.Domestic Violence and Firearms
Georgia’s laws are some of the least restrictive in the nation, and
provide for expanded access to firearms and additional protections for
those who might use firearms against another. Access to firearms, and
legislation that allows a perpetrator of domestic violence to carry
firearms and weapons in an increased number of locations, may pose a
threat to victims of domestic violence.
60 percent of homicide victims killed by intimate partners are killed
using a firearm (Ludwig 2003).
D.State Restrictions on Firearms in Domestic Violence
1.Introduction
Though federal restrictions on the possession of firearms in temporary
protective orders, and in cases of domestic violence, exist, they often
fail to be enforced. As an additional protective measure against the
continued possession of firearms by perpetrators of domestic violence,
several states have enacted state-level legislation that restricts access to
firarms for perpetrators of domestic violence.
2.Louisiana
House Bill 753 prohibits those who have a protective order against
them from possessing a firearm for the duration of the order. Those

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who have been convicted of domestic abuse are prohibited from
possessing a firearm for a period of 10 years. Law enforcement officers
are required to confiscate guns at the scene of a domestic abuse call. It
was signed into law in May of 2014 and goes into effect on August 1,
2014.
3.Washington
House Bill 1840 prohibits those who have a protective order against
them from possessing a firearm for the duration of the order. It also
requires law enforcement agencies to develop policies and protocols for
firearm removal, storage, and return.
4.Minnesota
House File 3238/Senate File 2639 expands existing handgun
restrictions for those convicted of domestic violence to include
restrictions on rifles and shotguns, and prohibits those convicted of
child or domestic abuse from possessing firearms permanently. The
bill prohibits those who have a protective order against them from
possessing a firearm for the duration of the order. It also creates a
process for the surrender and storage of those firearms.
5.Wisconsin
Assembly Bill 464 prohibits those who have a protective order from
possessing firearms and outlines procedures to facilitate surrender of
the weapons. They are required to fill out a form documenting their
weapons. There must be a hearing during which they are ordered to
surrender their weapons. When the order expires, the party must
request their weapons back in writing.
E.

Forms Attached:
1.

Form A: Defendant’s Written Acknowledgement of Firearms
Prohibition

2.

Form B: Bond Conditions Form, Including Firearms Restriction
Language (2(c) and (d))

3.

Form C: Plea Agreement, including acknowledgement of Firearm
Restriction (para. 9)

4.

Form D: Sentencing Sheet, including specific firearms restriction
(paragraph 11)

5.

Form E: Acknowledgement of Receipt of Firearm By Third Party

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E:16

Acknowledgement of Prohibition
Against Receiving, Shipping, Possessing, Transporting, or
Attempting to Purchase a Firearm or Ammunition
I_________________________________________________, Date of
Birth _________,
Full name (please print)
________________________________
(Social Security number)
Acknowledge that I have read, or had read to me, the following and
understand that:
____ I have been convicted of a felony offense, or
____ I have received First Offender Treatment for a felony offense, or
____ I have been convicted of a misdemeanor crime of domestic
violence.
As a result of this action, I am prohibited by Georgia Law (O.C.G.A. §1611-131 and §42-8-60 through 65) and Federal Law (18 U.S.C. 921 through
925) from receiving, shipping, possessing, transporting or attempting to
purchase a firearm. This includes any handgun, rifle, shotgun or other
weapon, which will or can be converted to expel a projectile by the action
of an explosion or electrical charge. I also acknowledge that if I am a
convicted felon or have been convicted of a misdemeanor crime of
domestic violence, federal law prohibits me from receiving, shipping,
possessing, transporting, or attempting to purchase ammunition. (18
U.S.C. §922(g)(9))
Possession of a firearm or ammunition means that I may not have a
firearm or ammunition in my actual, physical control (i.e. in my pants
pocket) or within my area of access and control (i.e. in the glove box of
my car). I may not possess a firearm or ammunition either by myself or
jointly with another person.
If I receive, ship, possess, transport, or attempt to purchase a firearm
or ammunition, I will be guilty of a state and/or federal felony crime.
I understand that this document can be used as evidence in a court of law
during probation revocation or criminal proceedings.

___________________________________
___________________________________
Signature
Witness

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___________________________________
___________________________________
Date
Title of witness

Form A

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IN THE MAGISTRATE COURT OF ________________ COUNTY
STATE OF GEORGIA
State of Georgia
Warrantless
v.
Citation
_____________________________
________________
Defendant

Warrant or
Arrest or

No.

SPECIAL CONDITIONS OF BOND
The above case having come before me and evidence having been
heard and considered with regard to granting of bond, IT IS HEREBY
ORDERED that said Defendant be admitted to bond under the following
conditions:
1. That bond in the amount of $___________________ be
allowed.
2. That as a condition of granting and continuance of said bond, the
Defendant:
(a ) Shall stay away, absolutely, directly and indirectly, by person and
telephone, from the person, home, school and job of
___________________________________________________________
subject to the following exceptions:
___________________________________________________________
________________________________________ [If none write “None.”]
The relationship between the Defendant and the protected person(s) is:
___ spouse
___ ex-spouse
___ living together ___ lived together in past

___ parents of same child
___ child/ren

(b) Shall not harass, stalk, threaten, injure, put in fear of bodily harm, or
otherwise contact in public or private places any of those person(s) named
in (a) above.
(c) Because the Defendant represents a credible threat to the physical
safety of the person(s) named in (a) above, the Defendant shall not possess

E:19

any firearm or ammunition while free on bail and shall surrender any and
all firearms now in Defendant’s domicile or possession to the arresting
agency within 24 hours from the time of release on bond.
(d) Shall not exercise the privileges afforded by a Georgia Firearms
License (concealed weapons carry permit) at any time while free on bail.
(e) Shall obey the laws of this state. Defendant shall in no case behave
violently toward nor offer to do harm to any person whatsoever.
That upon probative evidence of violation of the above terms and
conditions of bond on the part of the Defendant, said bond shall stand
REVOKED.
SO ORDERED this ____ day of _______________________, 200__.

_________________________________________
Judge, Magistrate Court of _____________ County

I acknowledge notice of the above condition of bond and realize that, upon
breach of any of the conditions, my bond may be revoked, and that I do
not have a legal right to a second bond after such revocation. I may also be
subject to sanctions under the contempt power of the Court.

Date:____________
Defendant:___________________________

Form B

E:20

IN THE STATE COURT OF ___________________ COUNTY
STATE OF GEORGIA
State of Georgia
No:_______________________
v.

Case

_________________________________
Defendant

RECORD OF DEFENDANT PRIOR TO ENTERING A PLEA
Under the penalty of perjury, the Defendant swears or affirms:
A. I am not under the influence of alcohol or drugs and I am not suffering from
any mental or physical disabilities.
B. I acknowledge (waive) the receipt of a copy of the accusation and I understand
the charge(s) stated in the accusation.
C. I understand:
1. Each misdemeanor offense carries a maximum penalty of 12 months
in jail which may be spent on probation, reporting or non-reporting, with
additional conditions including the performance of community service and
payment of a fine up to $1,000 ($5,000 for misdemeanors of a high and
aggravated nature) and the court may order the sentence of each such offense to
run consecutively, that is one following the other;
2. If I violate any criminal laws of any governmental unit or any terms
and conditions of probation, the Court may revoke all or part of the balance of
the probation period and sentence me to serve that time in jail.
3. I have the right to be represented by an attorney and if I cannot afford
an attorney, the court may appoint an attorney to represent me at no cost if I meet
certain income guidelines;
4. A lawyer may be able to provide defense(s) to the charge(s) and/or
assist in mitigating the sentence;
5. A not-guilty plea will be entered for me if I remain silent and I will be
scheduled for a jury trial;
6. My guilty plea may result in deportation if I am not a citizen of the
United States:
7. The judge is not required to follow the recommendations of the
solicitor in imposing the sentence;
8. If the court intends to reject the plea agreement, the disposition of the
case may be less favorable to me than contemplated by the plea agreement;
9. I am prohibited from possessing, receiving, shipping and transporting
a firearm under federal law if I enter a guilty plea to a charge involving domestic
violence;
10. All habeas corpus proceedings challenging a conviction must be filed
one year from the date on which the conviction becomes final except in traffic
cases where the time limitation is six months. See O.C.G.A. §9-14-42; §40-1333.
D. I understand by entering a plea of guilty or nolo contendere, I waive:
1. The right to a speedy and public trial by jury;

E:21

2. The right to have State prove my guilt beyond a reasonable doubt;
3. The presumption of innocence.
4. The right to confront witnesses against me;
5. The right to subpoena witnesses;
6. The right to testify and to offer other evidence;
7. The right to assistance of counsel at all stages of trial; and
8. The right not to incriminate or testify or produce evidence against
myself.
I freely and voluntarily enter my plea of _____________________ to the
charge(s) against me. No promises, threats or inducements have been made to me
by anyone.
______ I am not represented by a lawyer. I understand the nature of the charges
against me and the consequences of my plea. I freely and voluntarily waive the
benefit of counsel and choose to represent myself in this plea proceeding.

_________________________________
___________________
Defendant

Date

_________________________ _______________________________
___________________
Solicitor
Attorney
Date

_________________________ _________________________________
Print Name:
Print Name and phone:

The Court finds the Defendant understands the nature and consequence
of Defendant’s action and the Defendant is freely and voluntarily entering into
this plea. The Court is satisfied there has been a sufficient factual basis for the
acceptance of this plea. As to pro se defendants, the Court has determined the
Defendant understands Defendant’s right to counsel and has knowingly,
voluntarily and intelligently waived that right. IT IS HEREBY ORDERED the
Defendant’s plea be accepted.

This _____ day of __________, 20___.

___________________________________________
Judge, State Court of
___________________ County

E:22

Form C

E:23

IN THE STATE COURT OF _____________________ COUNTY
STATE OF GEORGIA
State of Georgia
v.
Criminal Action No. ____________________
_______________________________
Defendant
PLEA

VERDICT

DISPOSITION

COUNT(S) _______

GUILTY ON
-JURY
COUNT(S) _______

CONTENDERE ON
COUNT(S)
_______

NOT GUILTY ON

PROSEQUI
ORDER
ON COUNT(S)
______________
D
DOCKET ORDER
ON
COUNT(S)
_______________
__

COUNT(S)_______

Fine Amount
________
______
POPIDF:
________
______
Plus 10%
________
______
Jail Staffing:
________
______
Victims Assistance:
_____________
Mandatory
assessment on all
fines.

Photo Cost:
_______
_______
Joshua’s Law:
_______
_______
Victim’s Fund:
_______
_______
Brain & Spinal
Injury Trust Fund:
_______
_______
Total Amount
Due: ____________

Drug
Assessment:
_____
________
Crime Lab Fee:
_____
________
Restitution:
_____
________
Public Defender
Fee:
___________
Probation User
Fee:
____________

IT IS CONSIDERED, ORDERED AND ADJUDGED BY THE COURT:
Defendant is to serve a sentence of ____hours/days/months, consisting of ___
hours/days/months of confinement, credit for ____ hours/days/months already
served and the remainder on probation.
PROVIDED THAT:
( )
1. The Defendant, having been granted the privilege of serving all or part
of the above stated sentence on probation, hereby is sentenced to the following
general conditions of probation: (A) not violate the criminal laws of any
governmental unit; (B) avoid injurious and vicious habits-especially alcohol
intoxication and narcotics and other dangerous drugs unless prescribed lawfully;
(C) avoid persons or places of disreputable or harmful character; (D) report to the
Probation Officer as directed and permit each Officer to visit him/her at home or
elsewhere; (E) work faithfully at suitable employment insofar as may be
possible; (F) not change his/her present place of abode, move outside the

E:24

jurisdiction of the Court, or leave the State for any period of time without prior
permission of the Probation Supervisor; (G) support his/her legal dependants to
the best of his/her ability.
( )
2. Payment by defendant of the fine and costs in the amount of
$_______________, and restitution in the stipulated amount of
$___________________, shall be a condition of probation.
( )
3. The Defendant shall perform ____ hours of community service at
times and places specified by the Probation Office.
( )
4. The Defendant shall report to the _______ County Jail on
_____________________ at _____________a.m./p.m.
( )
5. Defendant is to attend a Risk Reduction Program and/or undergo
alcohol and/or drug evaluation and treatment as directed by the Probation Office,
and/or attend AA/NA ____ times a week for ___________ months, and show
proof of same to the Probation Office.
( )

6. Defendant is to pay $____________ per month supervision fee.

( )
7. Defendant may work off fine and fees by performing community
service at the rate of $____________ per hour.
( )
8. Defendant is to submit to random screening of blood, breath, urine or
other bodily substances, at Defendant’s cost.
( )
9. Defendant to complete approved Domestic Violence Intervention
Program and to return to court on ________________ at ______a.m./p.m. to
show compliance.
( )
10. Non-Reporting Probation once all conditions are met. However,
Defendant shall report for no less than ____ months.
( )
11. Because the Defendant committed a misdemeanor of domestic violence, defendant
shall not possess, receive, transport firearm(s) or ammunition as prohibited by federal law. The
relationship between the Defendant and the victim is either spouse, ex-spouse, parents of a child
in common, child and parent or guardian, cohabiting now or in the past as a spouse, parent, or
guardian, or similarly situated to a spouse, parent, or guardian.
( )
12. Other:
______________________________________________________________

SO ORDERED this ____ day of ______________, 20____.

______________________________________

E:25

Judge, State Court of
______________ County

NOTICE
I have read or have had read to me the above conditions of probation and the
Court’s General Conditions of Probation. I understand that my probation is an
alternative to a jail sentence. I also understand that my probation may be revoke,
I may be immediately arrested, and the balance of my probation served in jail if I
fail to abide by these conditions.

___________________________________
Defendant

Form D

E:26

IN THE _________ COURT OF _____________ COUNTY
STATE OF GEORGIA
____________________________
v.
____________________________
No._____________________

AFFIDAVIT OF RECEIPT OF THIRD PARTY TRANSFER
Before me, the undersigned personally appeared and after being duly sworn,
deposes and says:
1. I, _____________________________________, residing at
___________________
______________________________________________________________,
whose date of birth is __________________, hereby agree to receive by sale
and/or transfer from the Defendant the following described firearms and/or
ammunition (set forth make, model and serial number):
________________________________________________________________.
2. I do not reside with the Defendant. My relationship to the Defendant
is _________________________________________.
3. I agree not to return, loan, or sell the firearms and or ammunition
listed in paragraph one or any other firearms or ammunition to the Defendant
under any circumstances, without a court order allowing same. I understand that
violation of this oath may result in contempt of court charges against me.
4. I further understand that it is a violation of federal law to transfer
firearms or ammunition to the defendant. 18 U.S.C. 922 (d)(9) states:
“It shall be unlawful for any person to sell or otherwise dispose of any firearm or
ammunition to any person knowing or having reasonable cause to believe that
such person…(9) has been convicted in any court of a misdemeanor crime of
domestic violence.”
I understand that violation of this federal law could subject me fines or
imprisonment for to up to 10 years.
I also affirm that I am not prohibited from owning firearms under either
State or Federal law. Further Affiant Sayeth Naught.

____________________________________
Signature

____________________________________
Print Name

E:27

SWORN TO AND SUBSCRIBED before me this _____ day of
_________________, 20____.
_____________________________
Notary Public
My commission expires:_________
Form E

E:28

F.

APPENDIX F - PROTECTION ORDER INFORMATION
SHEET

A.

Information For Petitioners
About Your Temporary Protective Order

Keep a copy of your order with you at all times.

Call 911 if the person you took the order out against disobeys the order.

For your protection, do not contact the person you took the order out
against. It is very important to remember that this order cannot guarantee
your safety.

This is a court order and only a judge has the authority to dismiss it. This
order, cannot be dismissed by you or the person you took it out against
without going back before a judge.

A violation of this order is a criminal offense. If the person you took this
order out against violates it, he/she can be arrested and prosecuted.

About Your Safety
Leaving someone who is controlling, threatening and abusive is a very dangerous
time for you and your children. It is important to talk to someone who has
experience in helping individuals separate from abusive partners. They can help
develop a safety plan for leaving that takes your unique situation into account.
The judge can refer you to someone with that experience.

F:1

G.

APPENDIX G - FAMILY VIOLENCE INTERVENTION
PROGRAMS (FVIP)

Table Of Contents
A.

Differences Between Anger Management And Family Violence
Intervention Programs (FVIPs) ............................................................... G:2

B.

General Information on Monitoring And Enforcing TPO Conditions.... G:3

1.

Overview. ................................................................................................ G:4

2.

Monitoring – General. ............................................................................. G:4

3.

Monitoring by Law Enforcement............................................................ G:4

C.

Monitoring by the Court - See Appendix S- Judicial Compliance Hearings
................................................................................................................. G:5

GCFV Contact Information ................................................................................ G:5
State Certified Family Violence Intervention Programs ..................................... G:5

G:1

A.
Differences Between Anger Management And Family Violence Intervention
Programs (FVIPs)
The distinction between anger management programs and certified family
violence intervention programs lies in differing philosophical tenets and is linked
to our beliefs about what causes domestic violence. Proponents of anger
management suggest the root of the problem lies in the perpetrator’s inability to
control their anger. This program model contends that domestic violence occurs
because the abuser is out of control, often responding to “triggers” in their
environment. This places the therapeutic solution on controlling the anger to
eliminate the abusiveness, and over-simplifies the complex nature of interpersonal
violence and abusive outbursts. This approach is risky as a response to domestic
violence because the victim becomes complicit in the abuse as a potential
“trigger” source and the perpetrator lacks responsibility for their actions because
they could not control their behavior. Alternatively, family violence intervention
programs are designed to address issues of power and control because the
proponents of this approach see the use of domestic violence by the perpetrator as
a means of intimidation and coercion designed to control and gain power over the
victim. This program model agrees that anger is present in domestic abuse
situations, but simply controlling anger will not eliminate domestic violence, and
violence may in fact be present in the absence of anger.

Anger Management
Who is served by the
programs?
Relevant statutes

Are programs certified
and monitored by a state
agency?
What is the emphasis of
the intervention?

How long are programs?

G:2

Perpetrators of stranger or
non-intimate violence.

Certified FVIPs

Family violence defendants and protective
order respondents.
O.C.G.A. § 19-13-16(a)
O.C.G.A. § 19-13-10 et. al.
O.C.G.A. § 19-13-1
No
Yes. Certification is administered by the
Georgia Commission on Family Violence
(GCFV) and the Georgia Department of
Corrections (GDC.)
Anger management
FVIPs are specifically designed to intervene
programs focus on anger as
with perpetrators of intimate partner
the impetus for violence
violence. Violence is viewed as learned
(Gottlieb, 1999.) Violence is behavior that is primarily motivated by a
primarily seen as a
desire, whether conscious or unconscious, by
reactionary behavior and as a the abuser to control the victim (Adams,
result of a triggering factor.
2003). Violence is seen as one of many
forms of abusive behaviors chosen by
abusers to control their intimate partners and
family members, including physical, sexual,
emotional and economic abuse.
Usually 8 to 20 classes, with 24 classes. The national average duration is
the average being 12 classes. 24 to 26 classes (Adams, 2003).

How much do programs
cost?

Unknown

Do programs contact
victims?

No

Are group facilitators
trained about domestic
violence?

Subject to agency discretion.

How would I address
grievances with this type
of program?
What type of data
collection occurs?

Talk to the director of the
program.
No statewide system.

$28 is the average cost per class and the most
common cost per class is $20 in Georgia.
FVIPs are required to have a sliding fee
scale for defendants declared indigent by the
court.
Yes. FVIPs contract with state-certified or
GCFV-approved domestic violence
organizations to contact victims to provide
referrals and safety planning.
Certification requires facilitators to have 80
hours of domestic violence training and 84
hours experience facilitating or co-facilitating
family violence intervention classes.
1) Talk to the director of the program.
2) Call GCFV.
GCFV and GDC have developed a statewide
collection system.

Are Family Violence Intervention Programs appropriate for women perpetrators?
Preliminary research suggests women who might best be categorized as primarily
victims of partner abuse can be distinguished from women who are more
appropriately categorized as primarily perpetrators. Furthermore, female domestic
violence offenders share many of the same characteristics as male offenders,
including similar motives and psycho-social characteristics (prior aggression,
substance use, personality disturbance, etc.). Perhaps most importantly, early
research suggests that the issues addressed in FVIPs may have relevance for both
male and female domestic violence offenders.
B.

General Information on Monitoring And Enforcing TPO Conditions
“Courts can promote safety for battered women by issuing protection orders;
contrary to popular opinion that they are ‘just a piece of paper,’ protective orders
have been found to be effective, particularly when the court and the law
enforcement systems enforce them.”
Julie Kunce Field, Screening for Domestic Violence: Meeting the Challenge of
Identifying Domestic Violence and Developing Strategies for those Cases, Court
Review, Summer 2002, at 10.
“Comprehensive provisions of restraining orders are only as good as their
enforcement. To improve their enforcement, courts should develop, publicize,
and monitor a clear, formal policy regarding violations. This might include
follow-up hearings, promoting the arrest of violators, incremental sanctions for
violators, treating violations as criminal contempt, and establishment of
procedures for modification of orders.”

G:3

National Council of Juvenile and Family Court Judges (NCJFCJ), Family
Violence: Improving Court Practice, 1990, pg. 21-22.
1.
Overview.
O.C.G.A. § 19-13-16(a) is stimulating a lot of good discussion in Georgia
about how TPO conditions may be monitored and enforced. Local
Circuits and courts are developing innovative strategies to deal with
monitoring and enforcing TPO conditions. These local solutions work
because they mobilize the individual strengths of each system and
community. Not all of the ideas below will work everywhere, but they are
examples of the kinds of ideas and solutions that are emerging.
2.
Monitoring – General.
a)
Both superior courts and law enforcement are charged with
enforcing protective orders. See O.C.G.A. § 19-13-4(d).
“It shall be the duty of every superior court and of every
sheriff, every deputy sheriff, and every state, county, or
municipal law enforcement officer within this state to
enforce and carry out the terms of any valid protective
order issued by any court under the provisions of this Code
section.”
b)
Make protection orders as clear, specific and detailed as
possible to minimize doubt about respondent’s proscribed
behavior (See Appendix N – Paragraph A. - Issues for
Consideration in Cases Involving Domestic Violence).
Include built-in consequences for noncompliance.
c)
Ensure that copies of protection orders are sent to the local
sheriff by the Clerk of Superior Court as required by
O.C.G.A. § 19-13-4(b).
d)
Ensure that protection orders are being sent to GCIC’s
Georgia Protective Order Registry as required by O.C.G.A.
§ 19-13-52.
e)
Request that State probation and local law enforcement
agencies develop training and policies to regularly use the
Georgia Protective Order Registry.
f)
Ensure that law enforcement officers know that prompt
service of TPOs on respondents is a top priority.
g)
Enforce valid orders from other states. VAWA’s Full Faith
and Credit Provision. 18 USC 2265(a). A protection order
from another State or tribe must be enforced “as if it were
the order of the enforcing State or tribe” 18 USC 2265(a) if
it meets the jurisdictional and notice requirements.
1.2Monitoring by Law Enforcement.
a)
Law enforcement must arrest a TPO respondent for a
contact violation. The respondent may be charged with the
misdemeanor charge of violating a TPO (O.C.G.A. § 16-595) or with the felony charge of aggravated stalking
(O.C.G.A. § 16-5-91.)

G:4

b)
c)

To be charged as a misdemeanor, the TPO contact violation
must be nonviolent.
O.C.G.A. § 16-5-90(c). Upon the second conviction, and
all subsequent convictions, for stalking, the defendant shall
be guilty of a felony and shall be punished by
imprisonment for not less than one year or more than ten
years.

C.

Monitoring by the Court - See Appendix S-Judicial Compliance Hearings

D.

GCFV Contact Information
Contact: Greg Loughlin, Executive Director, Georgia Commission on Family
Violence at 404-463-6230 or www.gcfv.org for program staff information.
The Institute of Continuing Judicial Education’s library has copies of Judicial
Review Hearings in Domestic Violence Cases in video and DVD for loan.

State Certified Family Violence Intervention Programs
For current certified programs listed by county and circuit please log on to
http://www.gcfv.org/index.php?option=com_content&view=article&id=81&I
temid=13

G:5

H.

APPENDIX H - IMMIGRANTS AND REFUGEES

Table Of Contents

A.

Introduction ............................................................................................. H:3

B.

Basic immigration terminology & documentation ................................. H:3

C.

Work authorization eligibility ................................................................. H:7

D.

Grounds of deportability ......................................................................... H:7
1.

Commission of crime involving moral turpitude (CIMT) ............ H:8

2.

Multiple criminal convictions ....................................................... H:8

3.

Commission of aggravated felony ................................................ H:8

4.

Controlled substance convictions ................................................. H:9

5.

Firearms convictions ..................................................................... H:9

6.

Domestic violence ......................................................................... H:9

E.

Sentencing considerations ....................................................................... H:9

F.

Immigration relief for battered women ................................................... H:9
1.

Violence Against Women Act (VAWA) ...................................... H:9

2.

T (Trafficking) visas ..................................................................... H:9

3.

U status........................................................................................ H:10

4.

Special immigrant juvenile status ............................................... H:11

5.

Refugees & political asylees ....................................................... H:12

G.

Illegal Immigration Reform and Enforcement Act ............................... H:13

H.

Hague Convention: international kidnapping ....................................... H:14

I.

Language access to interpreters in domestic violence cases ................. H:16

J.

Additional safeguards for protective orders & bond orders.................. H:16
H:1

K.

Georgia Security & Immigration Compliance Act ............................... H:18

L.

VAWA confidentiality .......................................................................... H:18

M.

Resources for battered refugee & immigrant women ........................... H:21
1.

Refugee & immigrant programs in Georgia ............................... H:21

2.

National programs ....................................................................... H:23

H:2

A.

INTRODUCTION TO IMMIGRANTS AND REFUGEES
Foreign nationals are not immune from domestic violence, and their non-citizen
status often makes domestic violence victims even more vulnerable. Yet, there are
several important factors that courts can consider to ensure their rights and safety.
The courts can be aware that immigration status, or lack thereof, is often used as a
tool of family violence. Abusive U.S. citizens or lawfully present non-citizens
frequently threaten domestic violence victims that if they call the police, they will
be report them to the immigration authorities to have them deported or divorce
them to render them out of status (where their status is marriage-based).
Moreover, foreign nationals involved in domestic violence cases may not have
access to their documents or may have been falsely accused. Language and
communication difficulties can compound this problem. Further, the violence
may occur between intimate partners, parents, in-laws or other family members.
Please find below some basic immigration information. Immigration law is
complex, and the information below does not cover all possible scenarios.
However, this information should provide some basic guidance to help avoid the
abuser’s using a court’s lack of knowledge about immigration as a method to
perpetuate abuse. It is also extremely important that foreign nationals are advised
to consult an attorney experienced in immigration law, as this area of law is
complex and changes frequently.

B.

BASIC IMMIGRATION TERMINOLOGY AND DOCUMENTATION
1.
Immigrants and Non-Immigrants. There are two types of non-citizens in
the U.S: immigrants and non-immigrants. Immigrants are here on a
permanent basis and non-immigrants are here on a temporary basis.
a)

b)

c)

Immigrants Many immigrants are lawful permanent residents
(also called LPR’s or greencard holders). A person can become an
LPR through: a family relationship; their employer’s sponsorship;
the diversity lottery; certain substantial business investments in the
U.S.; extradordinary/ exceptional ability in certain fields; or a grant
of asylum status, refugee status, or relief in immigration Court.
LPR’s may
reside in the United States permanently, may work for any
employer or themselves, and may travel in and out of the United
States, as long as they do not abandon their U.S. domicile. LPR’s
may be subject to removal (or deportation) if they become subject
to grounds of inadmissibility or deportability.
Non-immigrants are in the U.S. on a temporary basis. They
include visitors, students, employees, certain crime victims. A
derivative spouse of an employment-based nonimmigrant or a
foreign student would fall out of status if their spouse divorced
them.

H:3

2.

Obtaining LPR status through marriage
a)

A common misconception is that if someone marries a U.S.
citizen, they automatically become a U.S. citizen. This is far from
the truth. Only some spouses of U.S. citizens are eligible to
become LPR’s. Moreover, those who do qualify must be sponsored
by their spouse through numerous applications to US CIS.
Generally, a U.S. citizen can file for LPR status for their spouse if
they entered the U.S. lawfully. Others must apply with the U.S.
consulate abroad, but may be subject to lengthy bars to approval
(e.g. 10 years) if they have been in the U.S. unlawfully. For
example, if the foreign spouse entered the U.S. by walking across
the border or otherwise entered without inspection, they cannot
generally obtain LPR status in the U.S. despite marrying a U.S.
citizen or having U.S. citizen children. They would be required to
leave the U.S. and would potentially be barred from returning for
three to ten years.

b)

Conditional permanent residence: Foreign nationals married to
their U.S. citizen spouses for less than two years at the time their
greencard application is approved receive two-year conditional
permanent resident status. Conditional LPR’s are required to
affirmatively petition US CIS to remove this condition during the
90 day window before their conditional residence expires. This
petition must be signed by both parties and requires proof that the
couple remains together in a bona fide marriage. If the couple is no
longer living in a bona fide marital relationship, the petition may
be denied. There are waiver provisions permitting a foreign
national to file this application without a signature from the U.S.
citizen (e.g. where there is proof of domestic violence, extreme
hardship, or divorce but a bona fide marriage was intended at the
time of marriage).

c)

Some foreign nationals enter the U.S. on a fiancé visa and get
married to their U.S. citizen spouses in the U.S. Others marry
abroad and enter the U.S. as LPR’s after obtaining immigrant visas
at the U.S. consulate abroad.

3.

Asylee/Refugee – One granted status in the U.S. based upon their fear of
returning to their home country because of past persecution and/or a wellfounded fear of future persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion. Most are
eventually eligible to file for permanent residence.

4.

Temporary Protected Status (TPS) - A status allowing temporary
residence and employment authorization to nationals of foreign countries
that have been appropriately designated by the government based upon
H:4

extraordinary and temporary political or physical conditions. TPS
applicants must meet the specific criteria established for TPS for their
particular country.
5.

Visa Waiver Program - A program under which nationals of certain
countries may enter the United States for up to 90 days (as visitors for
business or pleasure) without first obtaining a visa from a U.S. embassy or
consulate. Generally, persons who enter under this program cannot extend
or change to another status once entered the United States.

6.

Employment Authorization Document (“EAD”)– A US CIS issued
Form I-688B document, provided to some (but not all) foreign nationals
authorized to work in the United States. EAD’s can be issued to
individuals with a specific visa status and to other designated groups (e.g.
students authorized to work, individuals with specific immigration
applications pending, Temporary Protected Status grantees, Deferred
Action or DACA grantees, asylees/refugees). It is important to note that
this is only one form of documentation to establish work authorization.

7.

Visa - A visa is an official endorsement, issued by a U.S. consulate,
certifying that the bearer has been examined and is permitted to seek
admission to the United States at a designated port of entry during the
visa’s validity. A visa does not grant the bearer the right to enter the
United States; it merely gives one the eligibility to seek admission at a
port of entry. Visas can be issued for extensive periods of time to be used
for multiple entries. There are immigrant visas and non-immigrant visas.
An expiration of a visa does not reflect the expiration of status in the
U.S. For example, many visitor visas are valid for 10 years, but that does
not mean that the visa holder may enter and remain in the U.S. for ten
years.

8.

I-94 – This white card issued by US Customs and Border Patrol upon
entry into the U.S. indicates when one’s status expires. It is typically
stapled to the passport. If a foreign national changed their status in the
U.S., their I-94’s may be a light green color and may be attached to an
approval notice. The period authorized for stay is stamped on the I-94
and may be less than the period of validity of the visa, or may be
longer than the period during which the visa itself is valid. It is
important to understand that it is the I-94, and not the visa in the
passport, that determines status and its validity as to time and
purpose. An alien is not out of status if he or she was properly admitted
pursuant to a valid visa and the visa has expired, provided the person is
still within the authorized period of stay indicated on Form I-94.
Moreover, where “D/S” is indicated instead of a date on the I-94, it means
that the foreign national is in status for the duration of their program (and
is a common annotation provided for foreign students). Finally, some

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lawfully present foreign nationals are not issued I-94’s (e.g. some
Canadians, lawful permanent residents).
10.

FOIA – The Freedom of Information Act allows one to file a “FOIA”
request for copies of documents filed with USCIS or other immigration
offices. Unfortunately, obtaining a response to a FOIA request can take a
very long time (several months to over a year). Some information may be
redacted from the FOIA response (including information pertaining to
family members of the requestor).

11.

Undocumented Immigrants – an immigrant who does not have legal
status to be in the United States. Some undocumented immigrants,
however, may have claim to an immigration status through pending or
potential applications. Undocumented immigrants do not generally include
those who lack a specific visa status if they remain in a period of stay
authorized by the U.S. Attorney General. Also, being visa–exempt does
not make one undocumented. Canadians for example, are simply admitted
to the U.S. by showing their Canadian passports without a visa, and they
often don’t have an I-94.

12.

Deferred Action
a. Deferred Action refers to an administrative decision by the
Department of Homeland Security (DHS) to defer any removal
(deportation) proceedings for an individual. It does not mean that the
individual has acquired a specific visa status. Rather, it is a
determination by DHS the individual is low priority for removal. This
is typically done for humanitarian purposes and renders the recipient
eligible for work authorization upon demonstration of a need to work.
b. Deferred Action for Child Arrivals (DACA)
In June 2012, President Obama and the Secretary of DHS
implemented a program referred to as DACA. The program’s purpose
was to formalize the process to request deferred action for a special
class of young people who came to the U.S. as minors. A DACA
approval does not grant any specific status. The DACA decision
simply formalizes a decision not to remove the individual and provides
them with authorization to work, attend school, obtain a social security
number, and to obtain a driver’s license. DACA applicants must meet
the following requirements:

(i) Under the age of 31 as of June 15, 2012 (those born June 16, 1981 or later);
(ii) Came to the United States before reaching 16th birthday;
(iii) Continuously resided in the United States since June 15, 2007, up to the present
time;

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(iv) Physically present in the United States on June 15, 2012, and at the time of making
your request;
(v) Entered without inspection before June 15, 2012, or lawful immigration status
expired as of June 15, 2012;
(vi) Currently in school, have graduated or obtained a certificate of completion from
high school, have obtained a general education development (GED) certificate, or
are an honorably discharged veteran of the Coast Guard or Armed Forces of the
United States; and
(vii) Have not been convicted of a felony, significant misdemeanor, three or more
other misdemeanors, and do not otherwise pose a threat to national security or
public safety.
C.

WORK AUTHORIZATION ELIGIBILITY
1.

There is no single document constituting a “work permit.” Some forms of
lawful status allow for work authorization and others don’t. Some who are
authorized to work are provided an employment authorization card
(“EAD”) and others are not. There are various documents that foreign
nationals may present to evidence work authorization.

2.

Virtually all EAD’s are limited as to time.

3.

Some individuals with EAD’s may have pending removal (deportation)
proceedings or even a removal order.

4.

The majority employment authorization for non-immigrants is limited as
to employer or nature of employment. For example, if they lose their job,
they may be out of status that day. Changing their job or job location may
even constitute a violation of status. Most non-immigrants authorized to
work have an approval notice or visa and I-94 as evidence of employment
authorization, but others do have EAD’s.

5.

Some non-immigrant derivative spouses are not eligible for work
authorization, which creates additional hardships for domestic violence
victims. For example, if they leave their abuser, they may not be able to
earn a living to support themselves or their children. However, the
Violence Against Women and Department of Justice Reauthorization
Act of 2005 (VAWA 2005) Tit. VII, Pub. L. No. 109-162 includes a
provision that provides eligibility for certain abused non-immigrants
to file special requests for employment-authorization. Proposed
regulations on this rule were issued in December 2012, but US CIS
has still not set up a formal procedure for these applications to be
accepted.

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D.

GROUNDS OF DEPORTABILITY

Certain arrests, charges, violations of protective orders or convictions can render a
foreign national deportable or ineligible for various immigration status. Arrests
and convictions, in the context of domestic violence, may even lead to victims
being deported (even when they have a green card or other legal immigrant
status). This may result in deportation to countries where the victim will have
little or no access to counseling, support, or court/police protection. Moreover,
some countries do not honor U.S. orders. Deportation of a batterer may also have
a detrimental affect on the victim, especially if the victim does not have strong
language capabilities, needs child support or does not have work authorization.
Please find below a sampling of grounds that may be used to remove or deport
someone from the U.S. and/or deny their immigration application or visa. This is
not an exhaustive list:
1.

Commission of “Crime Involving Moral Turpitude” (CIMT)
a)
Crimes where conduct is “inherently base, vile and contrary to the
accepted rules of morality”, moral turpitude often involves evil
intent. Interpretation of CIMT’s are largely derived from case law
and crimes constituting CIMT’s are quite broad. The entire record
of conviction may be examined in a CIMT determination.
b)

Examples:
(i)
Assault with intent
(ii)
Aggravated Assault
(iii)
Child Abuse
(iv)
DUI when license already suspended
(v)
Robbery & Theft Crimes
(vi)
Prostitution
(vii) Crimes Involving Fraud
(viii) Shoplifting
(ix)
Domestic Violence

2.

Commission of Multiple Criminal Convictions (2 or more CIMTs)
a)
Any two crimes involving moral turpitude not arising out of single
scheme of criminal misconduct

3.

Commission of Aggravated Felony
a)
Actual felony conviction not necessary and jail time not
necessarily involved
b)
Misdemeanors can be aggravated felonies
c)
Examples:
(i)
Controlled Substance Offenses

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(ii)

4.

Crime of Violence for which term of imprisonment is at
least 1 year in the original sentence (not what was actually
served)
(iii)
Theft Offense for which term of imprisonment at least 1
year in the original sentence (not what was actually served)
(iv)
Fraud Offense where loss to victim exceeds $10,000.
Controlled Substance Convictions

5.

Firearms Convictions

6.

Crimes related to Domestic Violence
a)
b)
c)
d)

Crime of Domestic Violence
Crime of Stalking
Crimes of Child Abuse, Child Neglect or Child Abandonment
Violation of Protective Orders

E.

Sentencing Considerations
1.
A sentence to confinement is considered confinement for immigration
purposes, even if probated or suspended.
2.
For some crimes, a twelve-month confinement sentence (even if probated)
can make a misdemeanor crime an aggravated felony (even if no time is
actually served in jail).
Crimes can become “crimes of domestic violence” if committed against a
person who is a former or current spouse, an individual with whom the
person shares a child in common, or by an individual similarly situated to
the person’s spouse under the domestic or family violence laws of the
jurisdiction. For example, a simple battery is not a CIMT, but if
committed against a spouse, will be considered a crime of domestic
violence. Also. while simply battery may not be a CIMT it could be an
aggravated felony in some circumstances.

F.

Immigration Relief for some Domestic Violence Victims
1.
Violence Against Women Act (VAWA)
a)
Applies to males and females
b)
Allows certain qualified abused spouses, children and parents of
United States citizens and legal permanent residents to self-petition
for legal permanent residence.
c)
Requires proof of abuse, such as protective orders, indictments,
accusations after indictments, police reports, arrest records, shelter
records, counselor’s statements.
d)
Must file within 2 years of the divorce.
e)
Allows abused conditional residents to extend their two-year
conditional status without participation from abusive spouse.
2.

T (Trafficking) Visas
a)
Allows persons who can show in the application for a visa that
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they
(i)
(ii)

(iii)
(iv)

b)

3.

have been victims of trafficking, debt bondage or slavery
Are physically present in the United States, American
Samoa, or the Commonwealth of the Northern Mariana
Islands, or at a port of entry thereto, on account of such
trafficking;
agree to assist in the investigation or prosecution of the
traffickers; and
would suffer unusual and severe harm if removed from the
United States.

After three years, victim may apply for permanent residence if s/he
has had T visa for three years, has complied with reasonable
requests for assistance by law enforcement, and possesses good
moral character.

U status
a)
This visa status provides temporary status for victims of certain
crimes enumerated in the statute, where the crime resulted in
physical injury or emotional trauma to the victim, and where the
victim is, was or could be helpful to the investigation or
prosecution of an enumerated crime.
b)
The accused does not need to be prosecuted or convicted for the
victim to qualify.
c)
The U visa was intended to help law enforcement investigate and
prosecute certain crimes, such as domestic violence, sexual assault,
and trafficking.
d)
After three years in U status, the applicant may be eligible to file
for a green card.
e)
Certain spouses, children and some siblings and parents may be
eligible for derivative status.
f)
Requirements:
(i)
Applicant is the victim of either: a crime enumerated in the
U
visa
statute/regulations;
an
attempt/conspiracy/solicitation to commit such a crime; or
an activity similar to an enumerated crime. Qualifying
crimes include: rape, torture, prostitution, sexual
exploitation, incest, trafficking, domestic violence, sexual
assault, abusive sexual contact, sexual exploitation, female
genital mutilation, being held hostage, peonage, slave trade,
involuntary
servitude,
kidnapping,
abduction,
manslaughter, murder, blackmail, witness tampering,
obstruction of justice, unlawful criminal restraint, false
imprisonment, felonious assault).
(ii)
Applicant has information about the relevant criminal
activity.

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(iii)
(iv)
(v)
(vi)

(vii)

(viii)

4.
a)

Applicant has suffered substantial physical or mental abuse
as a result of the crime(s).
Applicant is, was or could be helpful to the investigation or
prosecution of the crime(s).
The relevant crime occurred in the US or violated US law.
Applicant must obtain “certification” with the assistance of
“a certifying agency”, which includes judges,
federal/state/local law enforcement officers, probation
officers, district attorneys, or other officials who might
have an investigative role in the criminal justice system.
The certification must verify that the applicant is, was or
could be helpful to the investigation or prosecution of the
crime. There is a U visa certification form created for this
purpose: Supplement B to Form I-918, available at
http://www.uscis.gov., which must be signed by the person
designated to this task by the head of a “certifying agency.”
It is important to keep in mind that the certification alone
will not guarantee U visa approval, but it is a required step
in the process.
The U visa status covers some indirect victims (e.g. certain
family members of murder/manslaughter victims or
incapacitated/incompetent victims).
Excludes one who is culpable for the criminal activity
specifically at issue in the U visa application. Those who
may have engaged in separate unlawful activity, however,
may nevertheless qualify. For example, a woman who
agrees to be smuggled into the US but is later held in
involuntary servitude will not be excluded from U visa
protection as a victim of involuntary servitude, even where
she may have some culpability by participating willingly in
the smuggling crime or by entering illegally into the US.

Special Immigrant Juvenile Status (SIJS)
An avenue for providing legal status to children who are
undocumented and have been abused, abandoned and neglected by
their parents.

b)

Based upon changes made under the Trafficking Victims
Protection Reauthorization Act of 2008 (TVPRA 2008) an eligible
SIJ alien now includes an alien: (1) who has been declared
dependent on a juvenile court; (2) whom a juvenile or State court
has legally committed to, or placed under the custody of, an
agency or department of a State; or (3) who has been placed under
the custody of an individual or entity appointed by a State or
juvenile court.

c)

Thus, petitions filed by the juvenile that include juvenile court
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orders legally committing a juvenile to or placing a juvenile under
the custody of an individual or entity appointed by a juvenile court
are now eligible. For example, a petition filed by an alien on
whose behalf a juvenile court appointed a guardian may be
eligible. Note that if a state or an individual appointed by the state
is acting in loco parentis, such a state or individual is not
considered a legal guardian for purposes of SIJ eligibility.

5.

d)

Previously, the juvenile court needed to deem a juvenile eligible
for long term foster care due to abuse, neglect or abandonment.
Under the TVPRA 2008 modifications, the juvenile court must
find that the juvenile’s reunification with one or both of the
immigrant’s parents is not viable due to abuse, neglect,
abandonment, or a similar basis found under State law. In short,
the TVPRA 2008 removed the need for a juvenile court to deem a
juvenile eligible for long-term foster care and replaced it with a
requirement that the juvenile court find reunification with one or
both parents not viable. If a juvenile court order includes a finding
that reunification with one or both parents is not viable due to a
similar basis found under State law, the petitioner must establish
that such a basis is similar to a finding of abuse, neglect, or
abandonment.

e)

Applicant must remain a “child” on the date the SIJS application is
filed with US CIS.

f)

A petitioner is still required to demonstrate that he or she has been
the subject of a determination in administrative or judicial
proceedings that it would not be in the alien’s best interest to be
returned to the alien’s or parent’s previous country of nationality or
country of last habitual residence.

Refugees and Political Asylees
a)
Refugees and asylees are people who have a well-founded fear of
persecution due to their race, religion, nationality, membership in a
particular social group, or political opinion.
b)
Poverty, alone, is not considered persecution, therefore people
coming to the United States solely to escape poverty are not
refugees or asylees.
c)
The fear of persecution must be both objective and subjective. The
social and political conditions must exist in the person’s home
country so that fear of persecution is possible and reasonable, and
the applicant, him or herself, must have a personal, reasonable fear
of persecution.
d)
The fear may be based on past persecution, or because of a fear of
future persecution.
e)
Refugees’ fear of persecution is evaluated before they enter the
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f)

g)

h)

United States. If they succeed in proving such “fear”, they are
invited to come to the US by our government. They are given
housing vouchers and some social welfare assistance during their
first three months in the US.
Asylees find their own way to the United States, and ask the US
government for protection once they are here. They can either
apply affirmatively for asylum with U.S. Citizenship and
Immigration Services, or file their application before an
immigration judge in removal proceedings.
Once status is granted, both asylees and refugees are given
immediate permission to work in the United States. They may
apply for legal permanent residence after they have had their
refugee or asylee status for a year.
This form of relief is often difficult to obtain for domestic violence
victims, depending on the circumstances and home country.

G.
THE ILLEGAL IMMIGRATION REFORM AND ENFORCEMENT ACT OF
2011 (HB87)
1. There are two sections of this law that concern victims of domestic
violence. They have both been challenged in the 11th Circuit, where one
was upheld and the other struck down. Georgia Latino Alliance for
Human Rights, et al v Nathan Deal et al, No. 11-13044 (11th
Cir.,8/20/2012).
a) Section 8, which was upheld, authorizes Georgia law enforcement
officers, when they have probable cause that someone has committed a
crime, to check that person's immigration status if they are unable to
produce adequate identification to prove citizenship, O.C.G.A. § 17-5100(b). The law includes an exception that could apply to victims of
domestic violence who are seeking help from law enforcement:
(f) No person who in good faith contacts or has contact with a state or local
peace officer or prosecuting attorney or member of the staff of a prosecuting
attorney for the purpose of acting as a witness to a crime, to report criminal
activity, or to seek assistance as a victim to a crime shall have his or her
immigration status investigated based on such contact or based on information
arising from such contact. O.C.G.A. § 17-5-100(f).
b) Section 7, which codifies three separate crimes for interactions with an
“illegal alien,” was struck down by the 11th Circuit on preemption
grounds. The law would have made it a criminal offense to “transport or
move an illegal alien ..while committing another criminal offense",
conceal, harbor or shield an illegal alien from detection, or induce an
illegal alien to enter Georgia, O.C.G.A. §§16-11-200(b), 16-11-201(b),
and16-11-202(b).
2.

There is nothing in HB 87 that authorizes law enforcement to check the
immigration status of a person filing a civil legal action or attending a civil
hearing. Law enforcement may verify a person’s immigration status only
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if they are being investigated for a criminal offense. As long as a victim is
only involved with a civil legal action, there should be no basis for law
enforcement to check their immigration status.
3.

Likewise, undocumented immigrants remain eligible to seek protective
orders related to family violence and stalking order

H. HAGUE CONVENTION: INTERNATIONAL KIDNAPPING
This provides an important means of relief for a victim of domestic violence who
fears that the abusing parent will kidnap the child on the pretext of taking the
child out of the country on visits. Although more than 70 countries have signed
on to the Hague Convention at this time, there are still a number of countries that
have not.
Outline of custody issues incident to domestic violence under Hague Convention:
1.
Custody battles incident to domestic violence:
a)
Relevant law:
(i)
Hague Convention-U.S. party
(ii)
U.S. version: International Child Abduction Remedies Act
(“ICARA”)
2.
Policy of Hague Convention:
a)
Prompt return of children wrongfully removed to a foreign state;
and
b)
securing that the rights of custody and access afforded to one
parent are respected by the other.
3.
Central legal issue affecting breadth of Hague Convention in a
custody dispute: a party’s removal of a child is considered “wrongful”
under the Hague Convention only if both countries at issue are contracting
states as of the date of the child’s removal.
a)
The child must also be under sixteen years of age.
4.
Caveat: a court presiding over a Hague Convention issue has no subject
matter jurisdiction to decide merits of a custody dispute.
a)
Sole issue before court is whether removal of a child from one
country to another is wrongful.
(i)
Advantages to parent victim of domestic violence who
suffers removal of child to another country: removing
parent cannot litigate custody issue in foreign state’s court,
and take advantage of any favorable law in the foreign state
on questions of custody;
(ii)
Disadvantage: victim parent cannot avail him/herself of a
forum with potentially beneficial custody law by simply
fleeing from abuser in the original state to another state and
taking the child with him or her.
5.
Once the prerequisites of “wrongfulness” are established, i.e., the presence
of two contracting States and a child who is under sixteen years of age,

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6.

7.

8.

9.

10.

then the removal is evaluated under the definition of “wrongfulness.” A
removal is “wrongful” if:
a)
it is done in breach of custody rights of a parent, under the law of
the State in which child was “habitually resident” immediately
before the removal or retention; and
b)
At time of removal or retention, those rights were actually
exercised, or would have been so exercised but for the removal or
retention.
“Habitual residence”: place where a child has been physically present
for an amount of time sufficient for acclimatization and which has a
degree of settled purpose from the child’s perspective. Feder v. EvansFeder, 63 F.3d 217 (1995).
a)
Focus on the child and analysis consists of child’s circumstances in
particular place, plus parents’ present, shared intentions regarding
the child’s presence there.
But, federal appeals decision adopted by 11th Circuit: Mozes v. Mozes, 329
F.3d 1067 (9th Cir. 2001). Focuses more on the intention of the parents.
Relevant areas of analysis under Mozes:
a)
Family jointly taking all steps associated with abandoning habitual
residence in one country to take it up in another.
b)
Child’s relocation to another country is initially “clearly intended
to be of a specific, delimited period,” then one parent changes his
or her mind and decides to make the move permanent.
c)
Parents have agreed to allow a child to stay in a new country for an
indefinite period.
d)
If parental intent is unclear, level of child’s acclimatization in new
country may be evaluated by court to determine whether shift in
habitual residence should be undisturbed or changed.
If American court finds that petitioner in Hague Convention case fails to
show by a preponderance of the evidence that a child has been removed
from his or her habitual residence, Hague Convention is inapplicable and
no return order of child is set. (Could be detrimental to victim of domestic
violence losing child.)
Custody rights under Hague:
a)
Petitioner has burden to show that removal of child from one
country to another is in breach of his or her custody rights:
(i)
Under the law of State in which the child was habitually
resident immediately before the removal or retention.
b)
Rights of custody not limited to court ordered custody; but preorder scenarios as well. Example: deteriorating marriage may lead
one party to consider leaving country and take child with him or
her.
Administrative vehicles by which to bring Hague Convention petition:
a)
Each contracting state must establish a Central Authority with
power to accept Hague Convention applications requesting return
of a child:

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Must apply to Central Authority of child’s habitual
residence or Central Authority of any other Contracting
State for assistance.
b)
U.S. has designated the National Center for Missing and Exploited
Children as Central Authority.
c)
If child has been wrongfully removed from the U.S. to a foreign
country, the U.S. State Department acts as Central Authority.
Petitioner may file Hague Convention petition in either state or federal
court in the place where the child is located at the time the petition is filed.
(i)

11.

I.
LANGUAGE ACCESS TO INTERPRETERS IN DOMESTIC VIOLENCE
CASES
There are both federal and state guidelines that require access to interpreters for
foreign language speakers.
1.
Title VI of the Civil Rights Act requires any agency receiving federal
funds to provide meaningful access to foreign language speakers.
2.
The precise requirement - i.e., what reasonable steps are needed to provide
that meaningful access - is determined by a four-factor balancing test:
a)
Number of Limited English Proficiency (LEP) persons eligible to
be served or encountered;
b)
Frequency of contact with LEP persons;
c)
Nature and importance of the program to the LEP individuals; and
d)
Resources available, including costs of providing LEP services.
3.
The relevant statute provides:
a)
Interpreters should be provided at no cost to the victim in
protective order hearings. 15-6-77(4)
b)
No fee or cost shall be assessed for any service rendered by the
clerk of superior court through entry of judgment in family
violence cases under Chapter 13 of Title 19 or in connection with
the filing, issuance, registration, or service of a protection order or
a petition for a protection order to protect a victim of domestic
violence, stalking, or sexual assault. A petitioner seeking a
temporary protective order (TPO) or a respondent involved in a
temporary protective order hearing under the provisions of Code
Section 19-13-3 or 19-13-4 shall be provided with a foreign
language or sign language interpreter when necessary for the
hearing on the petition. The reasonable cost of the interpreter shall
be paid by the local victim assistance funds as provided by Article
8 of Chapter 21 of this title. The provisions of this paragraph shall
have control over any other conflicting provisions of law and shall
specifically have control over the provisions of Code Sections 156-77.1, 15-6-77.2, and 15-6-77.3.
4.
According to Supreme Court of Georgia court proceeding must be tape
recorded if a certified interpreter is not being used.
J.
ADDITIONAL SAFEGUARDS FOR PROTECTIVE ORDERS AND BOND
ORDERS
Here are some examples of items that can be added to the temporary protective
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order (TPO) to help protect foreign national domestic violence victims but also to
obtain what is necessary to prove their status. Many of these provisions are
already available as an additional Appendix B of Bond Orders throughout the
State of Georgia.
You can ask that the abuser:
1.
Give victims access to, or copies of, any documents supporting their
application. Have victims consult an immigration attorney to find out
which documents should be requested and how to find out his or her
immigration status.
2.
Not withdraw the application for temporary or permanent residency,
which had been filed on the victim’s behalf.
3.
Take any and all actions necessary to ensure that the victim’s application
for temporary or permanent residency or conditional permanent residency
is approved.
4.
Not contact Department of Homeland Security (DHS), the Consulate, or
the Embassy about the victim’s status. This is useful when abusers try to
prevent victims from obtaining legal residency or legal status.
5.
Immediately turn over victim’s personal property. If the court orders this,
it is advised that a law enforcement escort be dispatched immediately with
the victim to get the documents and items. If the court waits, the batterer
may destroy documents needed for the victim to obtain immigration
status.
6.
Sign a form to obtain the abuser’s birth certificate or provide a copy of his
or her green card or U.S. passport. Oftentimes proof of the abuser’s
citizenship or permanent resident status is needed.
7.
Not remove the children from the court’s jurisdiction and/or United States.
Obtain a court order that the abuser turn over the children’s passports to
the victim or the court. Send a copy of the court order to the U.S. Dept of
State Office of Passport Services. This should keep the abuser from
kidnapping the children.
8.
Sign a statement that will also be signed by the victim and the judge to
inform the relevant embassy or consulate that they should not issue a
visitor’s visa or any other visas to the child of the parties.
9.
Pay any fees associated with the petitioner’s and/or children’s immigration
cases.
10.
Send copies to respective consulates, embassies, passport office, and
airlines to prevent issuance of a visa.
11.
Sign a prepared Freedom of Information Act (FOIA) form with the result
of this form being sent to the victim’s attorney. This helps when the
abuser has been keeping information from the victim about the status that
may have been filed on the victim’s behalf.
State information about previous marriages and divorces and whether the
abuser has the copies of the decrees. If the abuser has the copies, ask that
they be turned over to the battered spouse. Proof of termination of
previous marriages is often required.
12.
There is always the possibility of abuser’s taking victims and their
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children out of the country to avoid their cooperation with law
enforcement or the courts, please consider language in protective orders
and bond orders to prevent such action. This is something you might want
to screen for when writing up orders. The abuser may also leave the
country so they don’t have to face the charges or consequences.

K.
GEORGIA SECURITY AND IMMIGRATION COMPLIANCE ACT (SB529)
AND HOW IT IMPACTS IMMIGRANT VICTIMS OF DOMESTIC VIOLENCE.
This state law was passed in June 2006 in order to regulate and restrict
immigrants in the state of Georgia. Many aspects of this law have unintended
consequences for battered immigrants because such persons will be afraid to go to
police for assistance out of fear that their immigration status will be verified and
they will be removed/deported.
1.
Police must verify immigration status for every person who is confined on
a felony or DUI charge.
2.
Prohibits unauthorized people (ex. Notarios) from providing immigration
services. Many “notarios” take advantage of vulnerable immigrants by
charging them for services that they are not authorized to provide. As a
result, a battered immigrant might think that the appropriate paperwork
had been filed only to find out that the paperwork was not filed properly or
not filed at all.
3.
A person convicted of human trafficking shall be guilty of a felony crime.
4.
By July 2009, all public employers and contractors must verify status of
newly hired employees.
5.
State agencies must verify immigration status of any applicant for benefits
over the age of 18. This has been adversely affecting children who have
been filing for SIJS status because of the way different jurisdictions have
been interpreting the word “benefits”. A broad application of this term
may prevent many battered immigrants or children from coming forward
to apply for support for which they are eligible. We believe that the word
“benefits” applies to State funded benefits that most immigrants have not
been granted or for which they are not eligible. It is important to note that
certain federally funded services such as shelter, victim compensation,
Violence Against Women funded services, interpretation and others are
exempt from this requirement.
L.

VAWA CONFIDENTIALITY
VAWA confidentiality protects immigrant victims from being picked up by
immigration, or law enforcement who have immigration duties, if they are relying
on information provided by the abuser. 8 U.S.C. § 1367 (commonly referred to as
the §384 confidentiality provision) prohibits disclosure of ANY information
relating to an foreign national who is a VAWA self petitioner, VAWA
cancellation, T or U visa applicant. The prohibition remains in effect until “the
application for relief is denied and all opportunities for appeal of the denial have
been exhausted.”

H:18

1.

VAWA Confidentiality provides three types of protection to immigrant
victims of violence, including battered immigrants and immigrant victims
of sexual assault, trafficking and other U-visa-listed crimes. Specifically,
VAWA:
a)

Protects the confidentiality of information provided to the
Department of Homeland Security, the Department of Justice or
the Department of State by an immigrant victim in order to prevent
abusers, traffickers and other perpetrators from using the
information to harm the victim.

b)

Prohibits immigration enforcement agencies from using
information provided solely by an abuser, trafficker U visa crime
perpetrator, a relative, or a member of their family, to take an
adverse action regarding admissibility or deportability against an
immigrant victim, without regard to whether a victim has ever filed
for VAWA related immigration relief or even qualifies to file for
it.

c)

Prohibits enforcement actions at any of the following locations:
domestic violence shelter; victim services program; family justice
center; supervised visitation center; or courthouse where the victim
makes an appearance in connection with a protection order case, a
child custody case or other civil or criminal case related to
domestic violence, sexual assault, trafficking, or stalking where the
alien has been battered or subject to extreme cruelty. If any part of
an enforcement action takes place at any of these locations, DHS
must disclose this fact in the Notice to Appear and in immigration
court proceedings, and must certify that such action did not violate
section 384 of IIRAIRA.

2.

In addition to Department of Homeland Security (DHS), VAWA
confidentiality provisions apply to family court officers, criminal court
judges, and law enforcement officers.

3.

VAWA’s confidentiality provisions require certification that the
confidentiality provisions have been complied with when enforcement
actions are taken at specified locations, such as domestic violence shelters,
rape crisis centers, or courthouses.

4.

VAWA’s confidentiality provisions prohibit DHS from using information
from particular individuals as the sole basis for arresting and charging an
alien with removability.

5.

VAWA’s confidentiality provisions generally prohibit third-party
disclosure of any information relating to an alien who is an applicant for
relief under VAWA.
H:19

6. VAWA’s confidentiality protections prohibit an abuser from inquiring into the
existence or substance of any VAWA, T-Visa and U-Visa application for
relief. VAWA confidentiality is a protection to be asserted by an
immigrant victim, not just a prohibition on governmental action. Absent
voluntary disclosure by a victim or limited exceptions set forth in the
statute, information protected by VAWA should remain confidential,
regardless of whether it resides with the government or the victim. To
hold otherwise would defeat one of the paramount purposes of VAWA
confidentiality, “to prohibit disclosure of confidential application materials
to the accused batterer”. Hawke v. United States Dep’t of Homeland Sec.,
No. C-07-03456 RMW, 2008 U.S. Dist. LEXIS 87603 (N.D. Cal. Sept.
29, 2008). The limited exceptions to VAWA mandated confidentiality of
VAWA protected information do not extend to discovery or use in civil
litigation between the victim and her abuser, or to criminal litigation in
which the victim testifies against her abuser.
7. Absent limited exceptions, VAWA’s broad confidentiality provisions expressly
prohibit the release of protected information by the government to third
parties. Although VAWA does not explicit address attempts by an abuser
to discover the same VAWA protected information from his victim in civil
or criminal proceedings, Congress’s intent to prevent the use by or
disclosure of any information related to confidential VAWA applications
to third parties is unambiguous. Permitting abusers to discover or use
protected information from their victims could render VAWA’s
confidentiality provisions meaningless and subject victims to the further
abuse that VAWA intended to prevent.

8.

Violation of VAWA confidentiality can result in:
a)
Disciplinary action and/or
b)
$5,000 fine for the individual and
c)
Dismissal of the immigration proceeding against the non-citizen.
d)
Violations also include making false certifications in a Notice to
Appear.
Useful links for this:
http://www.legalmomentum.org/assets/pdfs/icememo.pdf
http://www.legalmomentum.org/assets/pdfs/vawa_notice_pdf.pdf
http://www.legalmomentum.org/assets/pdfs/hawke.pdf
http://iwp.legalmomentum.org/vawa-confidentiality/tools/VAWACONF_Factsheet_2009.pdf

H:20

M.

Resources For Battered Refugee And Immigrant Women In Georgia

1.
Refugee and Immigrant Battered Women Programs: All caseworkers
and advocates from below listed projects are bilingual, bicultural and
trained
in domestic violence issues. They are all members of
TAPESTRI, Immigrant and
Refugee Coalition Challenging Gender
Based Oppression.

AGENCY/PROJECT

LANGUAGES

Tapestri
Phone: (404) 299-2185
Fax:
(770) 270-4184
www.tapestri.org

Amharic, Bosnian, 
Hindi, Farsi,
Spanish, Polish,
Russian,
Vietnamese
Korean, Spanish,

English

Tapestri Men’s Program
Phone: (678) 698-3612

International Women’s House
Hotline: (770) 413-5557
Fax:
(678) 476-6804

http://internationalwomensho
use.org/
Caminar Latino, Inc.
Phone: 404-413-6348
Fax
678-527-8700
www.caminarlatino.org

RAKSHA, Inc.
Helpline: (404) 842-0725
Phone: (404) 876-0670
Toll free: (866) 725-7423
Fax:
(404) 876-4525
www.raksha.org

SERVICES

English, Bengali,
Hindi, Gujarati
and other South
Asian languages,
English

Multicultural Training in DV

Legal advocacy

Services to victims of human
trafficking

24 weeks violence intervention
program

Community education

Arabic, French,

Greek, German,
Hebrew, Spanish,
Russian, English

Spanish

Information about and referrals
to services available to battered
immigrant women in metro
Atlanta area

Shelter for battered refugee and
immigrant women and children
(max. stay time for residents: 13 months)

Counseling

Legal advocacy

Support groups for women and
children; *Batterers intervention
groups for Latino men

Crisis counseling

Legal advocacy/referrals

Support groups and counseling

H:21

AGENCY/PROJECT

Refugee Family Services
Phone: (404) 299-6217
Fax:
(404) 299-6218
www.refugeefamilyservices.org

Jewish Family and Career
Services
Phone: (770) 677-9300
Fax:
(770) 677-9400

LANGUAGES

English, Arabic,
Bosnian, Kurdish,
Farsi, Russian,
Spanish, Somali,
Sudanese,
Vietnamese,
English

http://icpacs.info/

Community education

Youth services

Crisis counseling

Legal advocacy/referrals

Employment assistance

Community education

ESL classes

Driver License Education

Hebrew, Yiddish, 
English

https://yourtoolsforliving.org/

Center for Pan Asian
Community Services
Phone: (770)-936-0969
Fax:
(770) 458-9377
E-Mail: cpacs@cpacs.org

SERVICES

Korean, Chinese,
Thai, and other
Asian Languages

Crisis counseling

Support groups for women

Community education

Referrals

Social Service Assistance

Translation and Interpretation

Food Pantry Servic

Family Violence Intervention
Program

Shelter

Phone: (404) 920-7725
Fax:
(404) 885-7210
www.catholiccharitiesatlanta.org

Spanish, French, 
English
They have access
to many other
languages through
volunteers

Pro-bono Legal assistance in
filing VAWA Applications

Georgia Asylum and
Immigration Network (GAIN)
Phone: (404) 572-2609
Fax:
(404) 572-5140
http://www.georgiaasylum.org/

Hindi, Spanish,

English
They have access
to many other
languages through

Pro-bono Legal representation for
asylum and special immigrant
juvenile status cases.

Catholic Charities

H:22

AGENCY/PROJECT

LANGUAGES

SERVICES

volunteers
Latin American Association
Phone: (678) 205-1018
Fax: (678) 205-1027

Spanish

Immigration Services

http://thelaa.org/
2.

National Resources:
AGENCY/PROJECT

SERVICES

National Center for Missing and Exploited Children
Hotline: 1800THELOST (1-800-843-5678)
http://www.missingkids.com/home

For international
kidnapping cases.

ASSISTA
Phone: (515) 244-2469
http://www.asistahelp.org/

For immigration
technical assistance


Legal Momentum Immigrant Women Program:
Phone:
(212) 925-6635
Policy Office: (202) 326-0040
http://www.legalmomentum.org/legalmomentum/progra
ms/iwp/
Peaceful Families Project
Phone: (703) 474-6870
www.peacefulfamilies.org

Technical assistance
referrals

Training and technical
assistance

Education materials

Original Authors: Aparna Bhattacharyya, Vidal Cordova, Nisha Karnani,
Monica Modi Khant, Kerry McGrath, Rathi Rao. 2008 Updates: Aparna
Bhattacharyya, Monica Modi Khant, Nisha Karnani, Sunita Iyer. 2009
Updates: Aparna Bhattacharyya, Nisha Karnani. 2013 Updates: Aparna
Bhattacharyya, Kate Gaffney, Nisha Karnani, Kerry McGrath, Joseph
Rosen. 2014 Table Updates: Donna Arriaga.

H:23

I.

APPENDIX I - MENTAL ILLNESS AND THE COURT

Table Of Contents
A.

Introduction ............................................................................................... I:3

1.

Court Evaluations...................................................................................... I:3

2.

Important Points Concerning Family Violence, the Courts, and
Mental Health Professionals ..................................................................... I:3

B.

Diagnoses - DSM-IV Lite* ....................................................................... I:4

1.

Mood Disorders. ....................................................................................... I:4

2.

a)
Depression..................................................................................... I:5
b)
Bipolar Disorder............................................................................ I:7
Anxiety Disorders ..................................................................................... I:8

3.

a)
Panic Disorder ............................................................................... I:9
b)
Obsessive-Compulsive Disorder ................................................. I:11
Schizophrenia .......................................................................................... I:13

4.

a)
Symptoms ................................................................................... I:13
b)
Hospitalization ............................................................................ I:15
Dementia ................................................................................................. I:15

5.

a)
Symptoms ................................................................................... I:15
b)
Causes ......................................................................................... I:16
c)
Treatment .................................................................................... I:16
Substance Abuse ..................................................................................... I:17

6.

a)
Symptoms ................................................................................... I:18
b)
Causes ......................................................................................... I:18
c)
Treatment .................................................................................... I:18
Other Common Problems and Disorders ................................................ I:19
a)
b)
c)

C.

Eating Disorders.......................................................................... I:19
Sleep Disorders ........................................................................... I:21
Sexual Disorders ......................................................................... I:22

Medications Used In Psychiatry* ........................................................... I:25

Antianxiety Medications ..................................................................................... I:25
Antidepressants ................................................................................................... I:25
Hypnotics ............................................................................................................ I:27
I:1

Mood Stabilizers ................................................................................................. I:28
Conventional Antipsychotic Medications ........................................................... I:28
Atypical Antipsychotics ...................................................................................... I:29
Anticholinergic Medications ............................................................................... I:29
Cholinergic Enhancers ........................................................................................ I:29
Medications Used To Treat Alcholism And Substance Abuse
Disorders ................................................................................................. I:30
Stimulants Used To Treat Attention-Deficit/Hyperactivity Disorder ................. I:30
Antiparkinsonian Agents .................................................................................... I:30
Other Medications ............................................................................................... I:30
D.

Mental Health Professionals* ................................................................. I:32

I:2

A.

Introduction
1.
Court Evaluations
The court often finds itself in a position to order psychiatric evaluations
and/or determine sanctions that affect the lives of individuals with mental
illness. This section provides general information about:
 diagnoses whose clinical course of symptoms may bring the
individuals suffering such symptoms in contact with the criminal
justice system. (DSM-IV Lite, The Georgia Mental Health
Sourcebook, Published by Care Solutions, 1994)
 psychiatric medications based on the symptoms they treat (Reprinted
with permission from American Psychiatric Glossary [Copyright
2003]. American Psychiatric Association.) and,
 the different types of mental health professionals. (Adapted from the
Georgia Mental Health Sourcebook, Published by Care
Solutions,1994)
The DSM-IV Lite presents a lay summary of the most common
psychiatric diagnoses. This is by no means an exhaustive list and should
not be used in any diagnostic capacity. The diagnosis of any mental
disorder is complicated and best left to Mental Health Professionals. A
list of psychiatric medications provides information on the symptoms
generally treated by that medication. There may be instances where a
certain medication is prescribed for problems that are not listed.
The final section presents a chart differentiating the various types of
Mental Health professionals.
1.3Important Points Concerning Family Violence, the Courts, and Mental
Health Professionals
It should never be assumed that an individual with a mental health
diagnosis does not know right from wrong. Determining whether
someone is a ‘batterer is not a clinical decision. It is not a diagnosis of a
psychological disorder, but a determination based on reviewing
information provided by collateral sources (such as social service reports
and criminal , mental health, and medical records) and by the alleged
abusers and victims, and by observing and documenting abusive or
coercive conduct that appears in meetings with practitioners, clinicians,
and other relevant personnel. (Aldarondo & Mederos, 2002)
When domestic violence is not mentioned by the parties involved, and
goes unrecognized by the court (See Appendix C), the nonviolent party is
often at a disadvantage. “The Report of the American Psychological
Association Presidential Task Force on Violence and the Family (1996)
notes that “evaluators not trained in domestic violence may contribute to
this process by ignoring or minimizing the violence and by giving
inappropriate pathological labels to women's responses to chronic

I:3

victimization. Terms such as ‘parental alienation’ may be used to blame
the women for the children's reasonable fear or anger toward their violent
father."
For an evaluation that truly assists the court in these difficult cases and
provides for the safety of victims of domestic violence, attorneys and the
court should check the credentials of all Mental Health professionals they
utilize. Where domestic violence training was received, the focus, length
and dates of each training should be determined. Local domestic violence
shelters can often provide names of area professionals with the requisite
training or assist the court in assessing a professional’s credentials.
“A psychological evaluation is not credible if it ignores a documented and
consistent pattern of coercive control and physical abuse that is
corroborated by sources such as a criminal record, police arrest reports and
information provided by the partners or children. At worst, it may echo
the abuser’s victim blaming and denial of violent behavior. At best, it will
be based on incomplete information” (Aldarondo & Mederos, 2002).
B.

Diagnoses - DSM-IV Lite*
Emotional issues have plagued men and women since the dawn of existence, yet it
has only been in the last 60 to 70 years that psychiatry and behavioral sciences
can claim a truly scientific explanation of mental illness. Mental health
professionals have made vast strides in identifying mental disorders,
understanding their natural course, and developing treatments for them.
In this section we briefly describe some more common mental difficulties and
disorders (as defined in the DSM-IV) that adults and children experience today.
Symptoms, causes, and possible treatment plans are also discussed. First, we look
at mood disorders, describing both depression and bipolar disorder. Second, we
review anxiety disorders including panic disorder and obsessive-compulsive
disorder. Next is an overview of schizophrenia, followed by dementia and
substance abuse. Finally, we end the section by describing other common
problems and disorders including eating, sleeping, and sexual disorders.
1.

Mood Disorders.
Mood governs motivation, energy, emotional experience and attitude
toward life. Moods, even bad ones, are normal and necessary. In fact, a
person who does not react with sadness to the loss of a job or a loved one
– or with joy to winning the Georgia lottery – would not be normal. A
clinical mood disorder represents disruptions of normal emotional
regulation. The central feature is a persistent, recurrent low or high mood,
or sometimes both at different times.
The two basic mood disorders are unipolar depression and bipolar disorder
(formerly called manic depressive illness). During the active phase of
unipolar disorder, mood is depressed. In bipolar disorder, moods are

I:4

marked by periods of greatly elated moods or excited states as well as by
periods of depression. Unipolar depression is far more common than
bipolar illness. Both disorders are discussed below.
a)
Depression
Everybody has periods of feeling “down” or depressed, often
called “the blues.” But for some people, these feelings are extreme
or persistent. They suffer from an illness called depression. These
depressed feelings can occur sporadically, or continue for long
periods.
Depression affects between 10 and 11 million Americans each
year. One out of every four women and one out of every eight
men will suffer some form of depression in their lifetimes. It
affects people of all ages.
To understand depression, it helps to understand what it is not. For
example, it is not about feeling sad, even intensely sad, after the
loss of a loved one. Sadness and grief are normal and temporary
reactions to life’s stresses, and they eventually pass. Depression,
the illness, does not. Depression is characterized by long-term,
unremitting feelings of hopelessness and helplessness.
There are two principal types of depression: major depression and
dysthymia.
Major depression is characterized by a depressed mood or loss of
interest and pleasure in most activities for an extended period. In
extreme cases, the depression is so intense and severe that a person
risks death from malnutrition and dehydration or from suicide.
Dysthymia, the second principal type of depression, is a chronic
state of mild depression that lasts for years and affects about 3
percent of the population at any time. With dysthymia, the mood
never seems to go away for more than a day or two, draining all
pleasure from life. The depressed feeling becomes a part of life.
Because symptoms are not as severe as with major depression,
people with dysthymia are better able to function in the short run.
However, eventually relationships and work may suffer, due to the
chronic symptoms.
(i)
Symptoms
Depression is a serious illness. Besides feelings, it can
change a person’s behavior, physical health, appearance,
and the ability to handle decisions and tasks. Depression is
often linked to poor school performance, alcohol and drug
abuse, and feelings of worthlessness and hopelessness.
Look for the following symptoms of depression:

I:5






(ii)

(iii)

Feelings of sadness and/or irritability
Loss of interest or pleasure in activities once enjoyed
Changes in weight or appetite
Changes in sleeping patterns
Feeling guilty, hopeless, or worthless
Inability to concentrate, remember things, or make
decisions
 Fatigue or loss of energy
 Restlessness or decreased activity
 Thoughts of suicide or death
If two or more symptoms persist for two weeks, you should
suspect depression and seek help.
Causes
While all of the causes of depression are not known, we do
know it occurs when hormones and chemicals in the brain
interact in ways that influence a person’s energy level,
feelings, and habits. These interactions are caused by
biological and emotional factors, ranging from a person’s
family history of depression to a traumatic life crisis. Not
uncommon, a series of stresses will trigger an episode of
depression. A history of major losses during childhood is
also strongly related to depression in adults. The genetic,
biological, and environmental causes of depression are
difficult to separate; a combination of them most likely
causes the disorder.
In addition, many people receive more than one diagnosis,
because depression is often associated with other disorders
such as alcoholism, anorexia, anxiety, and obsessivecompulsive disorders.
Treatment
Many people who suffer from depression do not seek help
or treatment. This is unfortunate, because depression is
among the most treatable of all mental illness. In fact,
more than 80 percent of all depressions can be successfully
treated. Treatment of depression depends on the severity
and type of illness. Perhaps the most important thing
family and friends can do is encourage the depressed
person to get treatment.
The two most common types of treatment – medications
and psychotherapy – may be used singly or together.
Current research suggests that a combination of
medications and psychotherapy offer the best results.
Many medications are available to treat depression.
Cognitive therapy and interpersonal therapy also have been

I:6

proven effective. Exercise therapy seems to help some
people. Bright light therapy is often effective for seasonal
affective disorders. For some individuals who are severely
depressed or who suffer from delusions, electroconvulsive
therapy, (ECT) is highly effective. However, ECT is used
rarely and only when the individual has not responded well
to other methods.
Left untreated, the symptoms of depression may continue
for months or even years. They can also lead to the most
serious complication of a depressive illness: suicide. A
special kind of psychic pain adds to feelings of despair and
guilt, eventually overwhelming an individual so that he or
she feels unable or unfit to live. The National Institute of
Mental Health estimates that 15 percent of untreated
clinical depressions end in suicide. Most people who kill
themselves are clinically depressed. However, it is
important to recognize that not all those who suffer from
depression attempt suicide.
b)
Bipolar Disorder
Sometimes individuals experience severe mood swings from
periods of extreme depression to periods of exaggerated happiness.
This is known as bipolar disorder or manic-depressive illness, an
illness that involves episodes of serious mania and depression.
The individual’s mood usually swings from overly “high” and
irritable (mania), to sad and hopeless (depression) and then, back
again, with periods of normal moods interspersed.
Almost two million Americans suffer from this illness, which was
formerly called manic-depressive illness. Unlike depression,
which is more common in women, bipolar disorder is seen equally
in men and women. The disease usually starts in adolescence or
early adulthood and continues throughout life.
(i)
Symptoms
Sometimes bipolar disorder is not recognized as an illness.
People who have it may suffer unnecessarily for years.
Look for these symptoms of mania and depression:
Mania:
 Increased energy, decreased need for sleep
 Racing thoughts, rapid talking
 Excessive “high” or euphoric feelings
 Behavior that is different from usual
 Inability to concentrate
 Irritability
 Obnoxious, provocative, or intrusive behavior
 Denial that anything is wrong

I:7

(ii)

(iii)

 Heightened sexuality
 Rash spending behaviors
Depression:
 Persistent feeling of sadness, anxiety, or emptiness
 Hopeless or pessimistic outlook
 Feelings of guilt, worthlessness, or helplessness
 Appetite loss, weight loss
 Inability to sleep
 Difficulty concentrating, remembering, and making
decisions
 Restlessness or decreased activity
Causes
Bipolar disorder tends to run in families, and is believed to
be genetic. Researchers are trying to identify a specific
genetic defect associated with the disease. Biological and
environmental factors such as stress have also been linked
with the illness.
Treatment
Bipolar disorders are treatable. Unfortunately, people with
the illness often fail to recognize the symptoms, or they
believe their problems are caused by something else. It is
important to recognize the disorder to receive effective
treatment.
Psychotherapy and medication are the basic treatments for
bipolar disorder. The type of treatment depends on the
severity and nature of the disease. Several medications can
treat both manic and depressive symptoms. Lithium is the
most widely prescribed medication for people with bipolar
disorder because it is very effective in treating mania and
may help treat depression as well. If it is effective, most
individuals will take lithium for the rest of their lives. Both
carbomazepine and valproate, two drugs usually used to
treat epilepsy, are also effective in treating mania. In cases
where lithium or other medications do not work,
electroconvulsive therapy (electroshock) has been effective
in treating severe depression.
Often individuals with the illness need help getting help.
The most important thing friends and family can do to help
is to encourage the person to get treatment. Help can be
found at private psychiatric offices and clinics, health
maintenance organizations, hospital departments of
psychiatry, or the family physician’s office.

1.4Anxiety Disorders

I:8

More than 13 million Americans suffer from anxiety disorders, the most
common form of psychiatric illness. Anxiety disorders are a group of
clinically specific illnesses, each with its own characteristics, causes, and
treatments. They include generalized anxiety disorder (GAD), panic
disorder, phobias, obsessive-compulsive disorder (OCD), adjustment
disorder with anxious mood, and posttraumatic stress disorder.
Despite their frequency, anxiety disorders often go unrecognized and
untreated. Because anxiety has many physical symptoms that can be
severe, people suffering from anxiety disorders commonly think that they
are physically ill and seek medical diagnoses and treatments. While their
physicians may recognize that there is nothing organically wrong, they
may overlook the appropriate diagnosis and treatment.
For people who receive the correct diagnosis, developments in
pharmacologic and psychotherapeutic treatments have vastly improved the
outlook for these illnesses. Over 80 percent of people with anxiety
disorders can be helped with psychotherapy, medication, or a combination
of both. Those with milder forms of anxiety, phobias, and compulsions
can even learn to control their own responses.
In this section, we discuss two of the more prevalent anxiety disorders:
panic disorder and obsessive-compulsive disorder.
a)
Panic Disorder
A person with panic disorder experiences sudden and unexpected
episodes of intense fear, marked by physical symptoms such as,
heart palpitations or dizziness. These are called panic attacks. The
attacks usually last between 5 and 20 minutes, rarely as long as an
hour. Although nothing seems to specifically trigger these first
attacks, they are often experienced during a time of transition or
crisis: during a divorce or at the loss of a relationship, or when
leaving home to go to college.
Panic attacks typically begin in young adulthood, but they can
affect older people and children as well. More than three million
people in the U.S. will have at least one attack during their life.
However, if the attacks become frequent – at least four in a fourweek period – or if they cause a person to worry about recurrences
or to avoid necessary or enjoyable activities, they constitute panic
disorder.
(i)
Symptoms
A person’s first panic attack often seems to come from “out
of the blue,” occurring when a person is engaged in some
ordinary activity, such as driving a car or walking to work.
A barrage of frightening or uncomfortable symptoms,
including the following, may occur:

I:9

Terror – a sense that something horrible is about to
happen
 Racing or pounding heartbeat
 Chest pains
 Flushes or chills
 Dizziness or nausea
 Tingling or numbness in the hands
 Sense of unreality
 Fear of losing control or doing something embarrassing
The symptoms usually last from several seconds to several
minutes. They are likely to fade gradually within an hour
or so. Initial panic attacks may occur when people are
under considerable stress from an overload of work, for
example, or from the loss of a family member or close
friend. Excessive amounts of caffeine and the use of
cocaine or stimulant drugs (such as those used to treat
asthma) can also trigger panic attacks.
Some people who have one panic attack or an occasional
attack never develop a problem serious enough to affect
their lives. For others, however, persistent attacks cause
much suffering. The attacks are usually unpredictable,
making their effects even more devastating.

(ii)

I:10

Panic attacks may advance to the point where a person
becomes afraid of being in any place or situation where
immediate escape is difficult. This condition is called
agoraphobia. It affects one-third of all people with panic
disorders. Typically, people with agoraphobia fear being in
crowds, standing in line, or riding in cars or public
transportation. The fear is of having a panic attack.
Persons with panic disorder can become very dependent on
a significant other to be a security object, causing much
stress in the relationship. In addition, they are likely to
restrict themselves to a “zone of safety,” an area that
includes only the home or the immediate neighborhood.
Even when they restrict themselves to safe situations,
people with agoraphobia who do not receive treatment
continue to have panic attacks at least several times a
month. Most people with agoraphobia are women who are
married and unemployed, and therefore perhaps more
susceptible to becoming housebound.
Causes
Several factors are believed to cause panic disorders.
Research shows the illness runs in families, suggesting a
genetic link. Brain and biochemical abnormalities and

(iii)

(iv)

b)

cognitive factors are also linked to the cause. Scientists
believe panic attacks begin as an inappropriate triggering of
the body’s “fight or flight” response. Environmental
factors, such as a history of abuse or neglect can also play a
role.
Treatment
Of those who suffer from a panic disorder, 70 to 90 percent
can benefit from treatment. Early treatment can keep the
disorder from progressing to the later stages, when
agoraphobia can develop. Before undergoing any treatment
for panic disorder, a person should receive a thorough
medical examination to rule out other possible causes for
the symptoms. Other conditions, types of epilepsy, high
levels of thyroid hormones, or disturbances in the heartbeat,
for instance, can cause symptoms similar to those of panic
disorder.
Agoraphobia and panic disorder are treated by cognitivebehavioral therapy, medication, or a combination of both.
Cognitive-behavioral therapy seeks to change thought
patterns or behaviors that appear to contribute to panic
attacks. This kind of therapy is effective in reducing panic
attacks or eliminating them altogether. Medication can also
be used to prevent or reduce panic attacks and to alleviate
the anxiety that causes them. Often, the medication helps
the affected person venture into situations that were
previously frightening. Once confronted, the situations
may no longer be as threatening.
Getting Help
People with panic disorders often undertake a strenuous
search to find a mental health professional who is familiar
with the best available treatments. Self-help and support
groups may help manage a panic disorder; a group of five
to ten people meet regularly to share their experiences and
encourage each other to venture into feared situations.
Other avenues of help include family physicians,
community mental health centers, hospital outpatient
clinics, and family service/social agencies.
Family members are also affected. They may become
increasingly frustrated in their attempts to help. It may be
good for family members to attend an occasional treatment
or self-help session or to seek the guidance of a counselor
or mental health professional to help them deal with their
feelings about the disorder.
Obsessive-Compulsive Disorder

I:11

Obsessive-compulsive disorder, as the name implies, involves
certain obsessions and compulsions that cause a person distress,
take up a lot of time, and/or significantly interfere with an
individual’s normal routine, work, and personal relationships.
Obsessions involve persistent, recurrent thoughts and ideas. The
most common obsessions are repetitive thoughts of violence or
contamination.
A compulsion is a repetitive behavior done in stereotyped fashion
that serves no useful function, is not necessarily pleasurable, and is
generally experienced as senseless. The behavior is designed to
neutralize or prevent discomfort or to avert some dreaded event or
situation. The most common compulsions involve hand-washing,
counting, checking, and touching. The person experiencing
obsessions and/or compulsions knows that they are irrational, but
is unable to control the symptoms. These persons usually
experience a tremendous amount of distress (and often shame)
about these problems.
Current research suggests the disorder is more common than once
believed. About 1% of Americans will suffer from obsessivecompulsive disorder at some point in their lives. The disorder
usually begins in adolescence or early adulthood (most experience
it before the age of 30) and affects men and women equally. It can
also occur in children. It causes moderate to severe impairment;
for some, acting out the compulsions can become the major life
activity.
(i)
Symptoms
An individual suffering from obsessive-compulsive
disorder may have trouble getting to work on time because
he spends time opening and closing drawers, takes hours to
clean himself, and/or must have his clothes arranged in a
certain way before he gets dressed. Other examples include
a parent repeatedly having impulses to kill a loved child
(not acted upon), or a religious person having recurrent
blasphemous thoughts.

(ii)

I:12

The following symptoms may indicate an obsessivecompulsive disorder:
 Performance of repetitive, stereotyping behaviors
 Recurrent and persistent ideas, thoughts, and impulses
that are intrusive and may not make sense.
Causes
While doctors once believed that compulsions were an
unconscious attempt to control unacceptable sexual and
aggressive impulses, research is now implicating brain

(iii)

function and chemistry. Scientists have linked the
overproduction of scrotonin, a neurotransmitter that
mediates many thoughts and processes, to those who suffer
from the disease. Environmental factors including family
history can also play a role.
Treatment
If untreated, about one-third of those with obsessivecompulsive disorder will have episodes intermittently
throughout their lives. Therapies, which encourage risk
taking and focusing on the present, have proven helpful as
well as response prevention therapies, which work toward
preventing performance of compulsion and behavioral
therapies which involve facing personal fears. Researchers
are also finding tricyclic antidepressants and other drugs,
such as Prozac, effective.

1.5Schizophrenia
Schizophrenia is one of the most misunderstood mental illnesses. Many
people believe incorrectly that schizophrenia means “split personality.”
Schizophrenia is actually a psychosis, a term encompassing several severe
mental disorders that result in a loss of contact with reality along with
major personality derangements. People with schizophrenia may have
hallucinations, delusions, or bizarre thoughts. Without treatment they may
have difficulty dealing with the most minor everyday stresses and
insignificant changes in their surroundings. They may avoid social
contact, ignore personal hygiene, and behave oddly or menacingly.
Beyond the disease itself, individuals and their families must struggle with
the social stigma attached to schizophrenia. Many people with
schizophrenia have no homes or no access to adequate medical services
because of deinstitutionalization policies and a subsequent lack of care in
many communities.
At any give time, some 600,000 people are being actively treated for
schizophrenia; many more have the disease. Each year, an estimated
100,000 people are newly diagnosed.
Three-quarters of all people with schizophrenia develop the disease
between the ages of 16 and 25. It affects men and women in equal
numbers, although it touches more men in the 16 to 20 year-old group and
more women in the 25 to 30-year old age group. Schizophrenia rarely
develops after the age of 40.
a)
Symptoms
The illness can best be described as a collection of particular
symptoms that will vary, depending on the nature of the illness.

I:13

To diagnose schizophrenia, symptoms 1, 2 and 3 listed below must
be present. The other symptoms listed may or may not be present.

Hallucinations – commonly auditory (hearing voices or
sounds) or somatic (e.g. feeling like body is disintegrating).

Delusions – false ideas that the schizophrenic believes to be
true. The delusions can be either paranoid or grandiose.

Disorganized thinking – difficulty keeping things straight
in the individual’s mind, often hindering relationships with
other people.

Altered senses – enhanced feelings in the early states or
blunted sensations in later stages. Thoughts or sensory
stimuli may flood the individual’s mind.

Altered sense of “self” – confusion about where the
individual’s body begins or ends. This stems from the
person’s difficulty making sense of the outside world.

Changes in emotions – fluctuating or exaggerated emotions
are most common in the early states. Emotions are often
inappropriate, such as laughing at something tragic.

Changes in behavior – withdrawal, ritualistic behavior,
repetitious movements, such as tics, tremors or tongue
movements. Also, catatonic behavior; an individual might
hold a position for hours, unable to talk or eat.
(i)
Causes
Research confirms that the brains of people with
schizophrenia have structural, functional, and chemical
abnormalities. There is strong evidence that the origins of
schizophrenia in the brain can be traced to irregularities in
neurotransmitters, the biochemicals that transmit nerve
impulses in the brain. Schizophrenia also appears to run in
families, although genetic transmission has not been
proved.
(ii)
Treatment
Schizophrenia cannot be cured. It can be treated.
Predictors for good treatment outcomes are normal
adjustment before the onset of the disease and little or no
family history of schizophrenia, confusion, paranoia,
depression, or catatonic behavior. Some predictors for a
poor outcome are: earlier age of onset, a family history of
the illness, withdrawal, apathy, and prior history of a
thought disorder.
Recent advances in the development of antipsychotic drugs
offer hope for people with schizophrenia. Use of these
prescription medications can be likened to using insulin to
treat diabetes. They can reduce symptoms of the disease
(such as delusions and hallucinations) and reduce the length

I:14

of hospital stays and the chances of rehospitalization. The
relapse rate for schizophrenia can be reduced to 9% with
appropriate treatment. With such a full range of treatment
options, many people with schizophrenia attend school and
live and work in the community.
One recent advance in treating schizophrenia is the drug
Clozapine (Clozaril). Clozapine is sometimes effective in
dulling symptoms and appears to have fewer side effects
than other antipsychotic drugs. However, a major
drawback to its use is that it can dangerously lower the
number of white blood cells (the cells that help fight
infection) in a small percentage of people. Everyone who
uses the drug must have a weekly blood count. Another
drawback is that the drug and weekly blood counts are very
expensive.
In addition to antipsychotic drugs, partial hospitalizations
and day treatment programs, as well as vocational
rehabilitation, are important resources for reintegration into
society.
b)
Hospitalization
Hospitalization for clients with schizophrenia is now necessary
only for initial diagnosis, treatment of relapses, and for crisis
episodes when symptoms intensify. Hospitalization should last
only as long as it takes to get symptoms under control.
It is critical for anyone who knows of a person suffering from
schizophrenia to help that person get treatment. The onset of
schizophrenia is a frightening experience. Through patience,
understanding, and persistence, friends and family members can
help those who suffer from schizophrenia obtain appropriate
treatment.
1.6Dementia
We all know of older people who tend to forget things or get confused
from time to time. But for some people, the symptoms are serious. They
lose their memory, reasoning, judgment, and higher mental processes.
Their personality and the way they interact with others change
dramatically. These individuals have a condition known as dementia.
The main feature of dementia is impairment in short-and long-term
memory and problems with abstract thinking, judgment, and other higher
cortical functions (language, motor activities and the ability to recognize
common objects).
a)
Symptoms

I:15

Loss of memory is usually the first and most prominent symptom
of dementia. In mild dementia, there is moderate memory loss of
recent events, such as forgetting names, telephone numbers,
directions, conversations, and events of the day. In more severe
cases, only highly learned material is retained, and new
information is rapidly forgotten. Other symptoms include:
(i)
Disorganized thinking: rambling, irrelevant or incoherent
speech
(ii)
Reduced level of consciousness
(iii)
Frequent misperceptions, misinterpretations, hallucinations,
or illusions
(iv)
Daytime sleepiness or insomnia
(v)
Disorientation to time, place or people
(vi)
Memory impairment
(vii) Personality change
Dementia is diagnosed when the loss of intellectual function is
severe enough to interfere with social or occupational functioning,
although the degree of impairment may vary.
b)
Causes
Dementia is not typical of the aging process. Most people who
grow older do not develop dementia. The disease is considered an
organic mental disorder because it is caused by physical
abnormalities in the brain.
Dementia can also be caused by other illnesses, such as Acquired
Immune Deficiency Syndrome (AIDS), multiple sclerosis,
encephalitis, and brain tumors. Subdural hematoma and other head
traumas can result in dementia as well.
c)
Treatment
Some organic brain disorders, such as Alzheimer’s disease, cause
widespread death to brain cells and have no known cure. But
many others stem from physical illnesses that can be treated and
often totally cured. The progression of some diseases can be
slowed or halted before notable damage occurs. Symptoms can be
alleviated or even eliminated.
Medical treatment is usually required for people with dementia.
Psychiatric and psychological treatments can help relieve some
symptoms and help individuals and their families cope with the
condition, but they are not the primary treatment of the physical
conditions of dementia.
(i)
Alzheimer’s Disease
The most common of all primary dementias, Alzheimer’s
disease is thought to affect from 2.5 to 4 million people in
the U.S. alone. The disease usually targets the elderly,

I:16

although some cases have been reported in people in their
30s.
Alzheimer’s begins gradually, affecting all the cognitive
mental processes. Memory loss progresses steadily; in
advanced stages of the disease, an enormous body of basic
knowledge disappears. Victims forget such things as how
to make a bed, and must be reminded to eat, drink, and
bathe. As memory fades, analytical skills also disappear.
After a few years of disease progression, a person typically
loses control over basic body functions.
The disease can continue for five to 15 years, or more.
Most individuals eventually die of infections, because their
immune systems are overtaxed.
No cure for Alzheimer’s disease currently exists, although
several promising drugs are being tested. Therapy consists
of medication to make daily life easier. These medications
might include antidepressants to combat the depression
often associated with the disease and sedatives for
insomnia.
1.7 Substance Abuse
In today’s society and throughout history, smoking cigarettes, having an
occasional drink, self-medicating with prescription drugs, or even getting
“high” on illegal drugs is not uncommon. The pleasurable effects from
usage include mood changes, relaxation, and altered perception.
However, because these substances bring pleasure, they also carry a risk
for dependency and abuse.
Substance abuse can affect anyone from adolescents to adults and is more
common in men than in women. Broadly defined, substance abuse is the
regular, habitual use of any substance to the degree that it causes selfdetrimental behaviors. Substances may include psychoactive drugs,
alcohol, and tobacco.
Almost 90% of Americans drink – and 10 to 13 percent of those develop
problems with alcohol. Further, it is estimated that 15 to 18 percent of
Americans will have a dependency problem with alcohol or other drugs at
some time during life. Alcohol abuse or dependence usually appears
between the ages of 20 and 50, whereas dependency on narcotics more
commonly begins in the late teens or early 20s.
Alcoholism is a chronic and progressive disease characterized by addiction
to or dependence on alcohol. It can be fatal or cause medial problems

I:17

such as brain atrophy, liver disease, cancer, and birth defects. Alcohol
abuse also has been linked to car accidents, violence, and suicide. People
who cannot control their compulsion to drink are alcoholics.
Other commonly abused drugs include: heroin, cocaine, sedative
hypnotics, tranquilizers, marijuana, phencyclidine (PCP), hallucinogens,
inhalants and the new designer drugs (made by amateur chemists). The
adverse effects of these drugs vary from upper respiratory problems with
marijuana to death from cocaine or heroin overdoses.
a)
Symptoms
People who meet at least three of these criteria are diagnosed with
a substance abuse disorder:
(i)
Using a substance in larger amounts or for longer periods
than originally intended
(ii)
Inability to reduce or control use of a substance, even after
recognizing its harmful effects
(iii)
Spending a great deal of time acquiring, using, or
recovering from a substance
(iv)
Failing to fulfill obligations due to substance effects
(v)
Reducing or eliminating activities at work or play because
of using a substance
(vi)
Suffering from a variety of social, psychological, or
physical problems due to continued use
(vii) An increasing tolerance of the substance used
(viii) Experiencing withdrawal symptoms after reducing or
eliminating substance use
(ix)
Taking a substance after experiencing withdrawal
symptoms
b)
Causes
Age, sex, heredity, religion and culture, peer influence, personality,
coping style, mental health, availability, and expense of the
substance itself are all factors that contribute to the development of
substance abuse. For example, since alcohol can be bought at any
liquor store and such drugs as cocaine and heroin are found readily
on the street, an abuser can obtain these substances easily and
quickly when needed. In addition, people may abuse the use of
sedative hypnotics and tranquilizers prescribed by physicians for
therapeutic use.
In the case of alcohol abuse, there is growing proof that the
condition is hereditary. Studies show that children of alcoholics
are more likely to become alcoholics themselves than children of
non-alcoholic parents.
c)
Treatment
It is very difficult for a person to overcome substance abuse alone.
In fact, studies have shown that the relapse rate is higher among

I:18

those who try to “cure” substance abuse without professional help
or group support. In some circumstances, people with substance
abuse problems may also be contending with an emotional or
behavioral disorder or physical disability, called a dual diagnosis.
However, the first step in any treatment plan is to completely stop
the use of the substance, and in some cases, go through
detoxification. As with any addiction, stopping the use could lead
to severe withdrawal symptoms. These symptoms vary depending
on the substance, but could include melancholy, profuse sweating,
hypertension, shaking or tremors, anxiety, irritability, delirium, hot
and cold flashes, and flu-like symptoms, to name a few.
The type of treatment depends on the nature of the substance and
the severity of abuse. Treatment can be found through inpatient
care in hospitals or rehabilitation centers, individual therapy or
counseling, halfway houses, support groups, outpatient treatment
programs, and 12-step programs such as Alcoholics Anonymous,
Narcotics Anonymous, and Cocaine Anonymous.
1.8Other Common Problems and Disorders
In this section we review eating, sleeping, and sexual disorders. We look
at the symptoms and issues that coincide with each disorder and briefly
describe the treatments available. Most of the people who suffer from the
disorders discussed in this section can be helped in a variety of ways.
Their suffering, and that of their families, can be alleviated and their lives
made more comfortable and productive.
a)
Eating Disorders
Most people – especially women – would be hard-pressed to name
a time when they did not go on a diet or think about their weight.
In fact, at any given moment, some 50 million Americans are on a
weight-loss program. But there are times when this pastime can
become a dangerous obsession, turning into eating disorders such
as anorexia nervosa, bulimia, or obesity.
(i)
Anorexia Nervosa
Anorexia nervosa occurs when a person goes beyond
dieting and literally stops eating. This serious eating
disorder is estimated to affect as many as one out of every
100 to 200 adolescent girls and young women and about
one-tenth as many boys and young men.
Experts believe that anorexia nervosa begins with the usual
dieting common in young adolescents. However, when
people become obsessed with being thin and view their
bodies in a distorted way (i.e., an emaciated girl thinks
she’s “fat”), this dieting takes a potentially dangerous turn.

I:19

There is no single known cause for the disease. Doctors
attribute its emergence to certain physical, personal,
familial, or societal pressures. The susceptibility may come
from low self-esteem, a genetic predisposition, or particular
metabolic and biochemical makeup.

(ii)

The major problem with receiving treatment is that the
affected individuals do not want help. They feel a sense of
accomplishment associated with their weight loss and deny
that they have a problem. Hospitalization is usually
required when the weight loss reaches a dangerous level
(25% or more below the normal body weight). Usually,
weight can be regained by combinations of psychotherapy
and learning new eating behaviors. Outpatient treatment is
also effective.
Bulimia
People with bulimia usually gorge themselves with huge
quantities of food (bingeing), then get rid of it by inducing
vomiting, exercising excessively, or using laxatives
(purging). Often, bulimia stems from anorexia, when a
person can no linger handle the deprivation and starvation,
but still wants to lose weight.
Bulimia usually begins later in adolescence than anorexia,
although people with bulimia can range in age from early
teens to mid-30s. Like anorexia, most of the victims are
women, and the disorder begins in association with dieting.
Unlike anorexia, the damage caused by bulimia is not
related to weight loss but to the purging behavior and use
of laxatives.
While people with anorexia cannot easily hide their illness,
and actually take pride in their “accomplishment”, people
with bulimia are highly secretive and will do everything in
their power to keep their secret from family and friends.

(iii)

I:20

Treatment for bulimia focuses on both the eating behavior
and the underlying emotional problems causing the
behavior. Group therapy or group support activities also
benefit those with this eating disorder.
Obesity
Mental health professionals today are realizing that
whatever the causes of obesity – genetics, behavior
patterns, physical and metabolic characteristics, and social

influences – the condition itself and even repeated attempts
to lose weight can have serious emotional consequences.
As a result, a primary goal of mental health professionals in
treating an obese individual is to help relieve the
demoralizing effects of the social stigma. Psychotherapy
may help the obese person learn new patterns of living and
eating, and also overcome the guilt and embarrassment of
being overweight.
b)
Sleep Disorders
While we all have occasional trouble sleeping, some people
experience sleep problems for longer periods. When this occurs, it
may be a symptom of a deeper physical or mental problem, or a
sleep disorder.
When diagnosing a sleep disorder, physicians should conduct a full
examination to eliminate other possibilities of illness. For
example, sleep disturbances are a common symptom of depressive
disorders and physical conditions causing pain or other discomfort,
and they can also be associated with use of certain medications.
When accurately diagnosed, most sleep disorders can be cured
with proper treatment.
There are four major types of sleeping disorders described below:
insomnia, hypersomnia, biological clock problems, and
parasomnia.
(i)
Insomnia
Insomnia is a term that describes difficulty falling asleep,
trouble staying asleep for long periods, or not feeling rested
after sleep. This condition usually occurs several times a
week and can go on for months. Insomnia can be severe
enough to result in significant daytime fatigue or other
problems stemming from lack of sleep.
There are two major categories of insomnia. Transient
psycho-physiological insomnia is caused by stress and
fades after a few weeks (or when the stressful period is
over). Persistent psycho-physiological insomnia is the type
that persists for more than three weeks. This condition
usually stems from a short-term problem snowballing into
recurring thoughts that cause sleeplessness.
Both forms of stress-related insomnia can be treated with
behavioral therapy that promotes good sleep habits.
Doctors often prescribe medications for short-term use to
help form these new habits and to combat daytime fatigue.

I:21

(ii)

Hypersomnia
While insomnia is the inability to sleep, hypersomnia is
described as needing too much sleep, experiencing
uncontrollable sleepiness, or sleeping at inappropriate
times. While uncontrollable sleepiness can be caused by
many thing – including diabetes, hypothyroidism,
depression, and drug use – two conditions are considered
distinct illnesses.
Sleep apnea, in which breathing stops briefly (usually due
to a slight blockage in the airways), can occur up to 100
times a night. While people with this condition can wake
up gasping for air, usually they sleep through the night
unaware of any problem. However, because of disruptive
sleep patterns, they are generally very tired during the day.
Overweight people commonly suffer from this disorder, as
do people who use alcohol and other depressant drugs. The
cure for sleep apnea usually includes learning new sleeping
positions.

(iii)

(iv)

c)

I:22

Narcolepsy causes people to have uncontrollable urges to
fall asleep or to fall asleep at inappropriate times. There is
no cure for narcolepsy, but symptoms can be relieved
through various stimulant drugs.
Biological Clock Disorders
When the body’s regular sleep-wake cycle is disrupted, a
person can suffer from biological clock disorders. These
include jet lag, when a person travels across several time
zones or must adjust to a new time zone; irregular sleepwake schedule, when a person’s sleeping schedule is
altered dramatically so that they constantly feel tired or
uncomfortable; and delayed sleep phase syndrome, where
people cannot or would not go to sleep until well past
conventional bedtime hours.
Parasomnias
In these sleep disorders, sleep is interrupted by such things
as sleepwalking or intense nightmares. Sleepwalking can
be limited to simple activities like sitting up in bed,
reaching for a glass of water, or turning on a lamp.
Infrequently, a sleepwalker will yell, scream, or thrash
around energetically. In any case, sleepwalkers do not
usually remember the event. They walk around with their
eyes open, do not usually talk, and can avoid bumping into
anything. Usually, parasomnias are treated with
tranquilizers, anticonvulsants, or antidepressants.
Sexual Disorders

Sexuality is essential in human life. Not only for procreation, but
as a way we define ourselves and give ourselves pleasure. Sexual
disorders are diagnosed when a person is unable to function or
respond sexually, or cannot conform to normal standards of sexual
behavior. We have defined two of the major sexual disorders
below: sexual dysfunctions and paraphilia.
(i)
Sexual Dysfunctions
Sexual dysfunctions occur when the normal sexual cycle is
blocked, causing a variety of problems such as loss of
sexual desire or ability to become aroused, orgasm
difficulties, painful sex, or aversion to sex. The
dysfunction can be caused by many organic and/or
psychological factors.
Illnesses involving the nervous, endocrine or circulatory
system can decrease sexual function. Trauma to the lumbar
or sacral spinal cord, a herniated disc, or prostate surgery
may also damage penile nerves. Further, many prescription
and nonprescription drugs affect sexual response, including
antihistamines, diuretics, blood pressure medications, and
antidepressants.
There are also several psychological causes for sexual
dysfunction. Those with mood disorders (such as
depression and bipolar illness) and schizophrenia often
report below-or above-normal sexual response. Other
psychological causes of sexual problems include
unconscious guilt or anxiety about sex, performance
anxiety, repressive inhibitions, sexual trauma, and
problematic relationships.

(ii)

The most effective treatments combine appropriate
elements of cognitive, behavioral, and couple therapy, and
any necessary medical treatments. For example, sensate
focus exercises encourage intimate contact and emotional
warmth rather than focusing on the mechanics of
intercourse.
Paraphilia
Paraphilia includes a wide range of sexual behaviors that
do not conform to acceptable social standards. Examples
include having sex with (or sexual fantasies about) a
nonhuman object, children, or other non-consenting
persons. People with these disorders do not usually
consider themselves ill or do not come to the attention of
mental health professionals until their behavior brings them
into conflict with their partners or society.

I:23

Several paraphiliac disorders have been recognized:
exhibitionism, frotteurism, fetishism, sexual masochism,
sexual sadism, pedophilia, and voyeurism.
Exhibitionists expose their genitals to unsuspecting subjects
and/or may masturbate in public. Frotteurism involves
touching and rubbing against a non-consenting person.
Fetishism is an intense sexual stimulation by a specific
object – often a woman’s clothing or a body part.
Individuals experiencing sexual masochism are sexually
aroused by being beaten, bound, humiliated, or otherwise
made to suffer. Sexual sadism is a powerful sexual
attraction to inflicting suffering on someone else, either
physically or psychologically. Pedophiliacs have an
intense sexual attraction to children. Voyeurism is a strong
sexual urge to observe unsuspecting people who are getting
undressed, are naked, or are engaged in sexual activity.
It is not clear why someone develops a paraphilia. Some
researchers believe it is physiological, others suspect a
chemical imbalance, and still others date the problem to
early childhood fears and events. Research continues to
seek answers.
When diagnosing paraphilia, the individual’s sexual history
is evaluated to determine the frequency of any unusual
behavior and the intensity of sexual fantasies. The mental
health professional must rule out other possible causes of
the paraphilia, such as psychosis or dementia.
Treatments vary and include altering hormone levels with
medications that reduce sexual drive. This method is best
used in combination with psychotherapy. Behavior
therapies have also been successful in some cases.
*

DSM-IV Lite is reprinted with permission from the Georgia Mental Health Sourcebook,
Published by Care Solutions,1994.

I:24

C.

Medications Used In Psychiatry*
____________________________________________________________
____________
Trade Name
Generic Name
____________________________________________________________
____________

Antianxiety Medications
Antihistamines
Atarax
Benadryl
Vistaril

hydroxyzine
diphenhydramine
hydroxyzine

Benzodiazepines
Ativan
lorazepam
Klonopin
clonazepam
Librium
chlordiazepoxide
Serax
oxazepam
Tranxene, Tranxene-SD, Tranxene-SD half strength clorazepate
dipotassium
Valium
diazepam
Xanax
alprazolam
Azapirone
BuSpar

buspirone

Antidepressants
Monoamine oxidase inhibitors
Eldepryl
Nardil
Parnate

selegiline
phenelzine
tranylcypromine sulfate

Tricyclics and tetracyclics
Adapin
Anafranil
Asendin
Aventyl
Elavil
Endep
Etrafon
Ludiomil
Ludiomil
Norpramin

doxepin
clomipramine
amoxapine
nortriptyline
amitriptyline
amitriptyline
perphenazine and
amitriptyline
maprotiline
desipramine

I:25

Pamelor
Sinequan
Surmontif

I:26

nortriptyline
doxepin
trimipramine

____________________________________________________________
____________
Trade Name
Generic Name
____________________________________________________________
____________
Trycyclics and tetracyclics (continued)
Tofranil, Tofranil-PM
Triavil
Vivactil

imipramine
perphenazine and
protriptyline

Selective serotonin reuptake inhibitors
Celexa
Lexapro
Luvox
Paxil
Prozac
Zoloft

citalopram
escitalopram oxalate
fluvoxamine
paroxetine
fluoxetine
sertraline

Serotonin-norepinephrine reuptake inhibitors
Effexor, Effexor XR
venlafaxine
Other agents
Desyrel
Remeron
Serzone
Wellbutrin, Wellbutrin SR
Zyban

trazodone
mirtazapine
nefazodone
bupropion
bupropion

Hypnotics
Sedative-hypnotic benzodiazepines
Dalmane
Halcion
ProSom
Restoril

flurazepam
triazolam
estazolam
temazepam

Sedative-hypnotic nonbenzodiazepines
Ambien
Equanil
Miltown
Sonata

zolpidem
meprobamate
meprobamate
zaleplon

I:27

____________________________________________________________
____________
Trade Name
Generic Name
____________________________________________________________
____________

Mood Stabilizers
Depacon
Depakene
Depakote
Dilantin
Eskalith, Eskalith CR
Lamictal
Lithobid
Lithonate
Lithotabs
Neurontin
Tegretol, Tegretol-XR
Topamax
Trileptal

valproate
valproic acid
divalproex sodium
phenytoin/diphenylhydantoin
lithium carbonate
lamotrigine
lithium carbonate
lithium carbonate
lithium carbonate
gabapentin
carbamazepine
topiramate
oxcarbazepine

Conventional Antipsychotic Medications
Butyrophenones
Haidol

haloperidol

Dibenzoxazepines
Clozaril
Lexitane

clozapine
loxapine

Dihydroindolones
Moban

molindone

Diphenylbutylpiperidine
Orap

pimozide

Phenothiazines
Aliphatic
Thorazine
Piperazine
Prolixin
Stelazine
Trilafon

I:28

chlorpromazine
fluphenazine
trifluoperazine
perphenazine

____________________________________________________________
____________
Trade Name
Generic Name
____________________________________________________________
____________
Phenothiazines (continued)
Piperidine
Mellaril
Serentil

thioridazine
mesoridazine

Thioxanthenes
Navane

thiothixene

Atypical Antipsychotics
Abilify
Clozaril
Geodon
Risperdal
Seroquel
Zyprexa

aripiprazole
clozapine
ziprasidone
risperidone
quetiapine
olanzapine

Anticholinergic Medications
Akineton
Artane
Cogenin
Kemadrin
Symmetrel

biperiden
trihexyphenidyl
benztropine
procycidine
amantadine

Cholinergic Enhancers
Acetylcholinesterase inhibitors
Aricept
Cognex
Exelon
Reminyl

donepezil
tacrine
rivastigmine
galanthamine

I:29

____________________________________________________________
____________
Trade Name
Generic Name
____________________________________________________________
____________

Medications Used To Treat Alcholism And Substance Abuse
Disorders
Antabuse
Buprenex
Depade
Narcan
ReVia

disulfiram
buprenorphine
naltrexone
naloxone
naltrexone

Stimulants Used To Treat Attention-Deficit/Hyperactivity
Disorder
Adderall, Adderall XR
Concerta
Cylert
Desoxyn
Dexedrine
Focalin
Metadate-CD
Ritalin

dextroamphetamine
methylphenidate
pemoline
methamphetamine
dextroamphetamine
dexmethylphenidate
methylphenidate
methylphenidate

Antiparkinsonian Agents
Eldepryl
Levopa
Sinemet

selegiline; L-deprenyl
levodopa; L-dopa
carbidopa-levodopa

Other Medications
Cytomel
Imitrex
Inderal
Meridia
Provigil
Stadol NS
Talwin
Viagra

I:30

liothyronine
sumatriptan
propranolol
sibutramine
modafinil
butorphanol tartrate
pentazocine
sildenafil

* Reprinted with permission from American Psychiatric Glossary
(Copyright 2003). American Psychiatric Association.

I:31

D.

Mental Health Professionals*
Discipline

 Training

Comments

Psychiatrist
(MD)






Bachelor’s Degree
4-years Medical School
1-year Medical Internship
3-years Adult Psychiatry Residency
Board Certified
1-2 years Specialized Fellowship
(Optional)

 Can prescribe medication
 Can admit patients to hospitals
 Can evaluate medical causes and
treatments

Licensed
Psychologist
(Ph.D.)





Bachelor’s Degree
Master’s Degree
Ph.D. (5-8 years)
1 year internship
1 year post doctoral supervision

 Skilled in administering and
interpreting psychological tests
 Individual, Group & Family
Psychotherapy
 Can admit patients to hospital

Licensed
Master’s of
Social Work
(LMSW)

 Bachelor’s Degree
 Master’s Degree in Social Work
 2 years post-graduate training and
internship

 Interfaces with community
programs
 Often uses short-term therapies

Licensed
 Same as Master’s of Social Work,
Clinical Social
plus:
Worker
(LCSW)
 4 years post master’s experience
 120 hours of supervision

 Same as a Licensed Master’s of
Social Work, plus:
 Psychosocial evaluation, in-depth
analysis of the nature and status of
emotional, cognitive, mental,
behavioral and interpersonal
problems or conditions
 Uses counseling and
psychotherapy techniques

Licensed
Marriage &
Family
Therapist
(LMFT)

 Bachelor’s Degree
 Master’s Degree (in counselingrelated field)
 4 years post master’s experience
 200 hours of supervision

 Trained in family and group
therapy
 Uses counseling and
psychotherapy techniques

Licensed
Professional
Counselor
(LPC)

 Bachelor’s Degree
 Master’s Degree (in counselingrelated field)
 4 years post master’s experience
 120 hours of supervision

 Trained in family and group
therapy
 Uses counseling and
psychotherapy techniques

Psychiatric
Nurse
(CNS)

 Bachelor’s Degree (usually R.N.
Training)
 2 years General Nursing Training (if
not obtained in college)
 Master’s of Science or Master’s of
Nursing

 Typically experienced with treating
psychiatric inpatients and groups
 Acts as liaison between family and
health systems
 Usually affiliated with and/or
supervised by psychiatrist

Pastoral
Counselor

 Bachelor’s Degree
 Master’s of Divinity
 Post Graduate Work for Doctor of
Sacred Theology in Pastoral
Counseling (optional)

 Training and accreditation varies
widely

* Mental Health Professionals chart is adapted with permission from the Georgia
Mental Health Sourcebook, published by CareSolutions, 1994.

I:32

I:33

J.

APPENDIX J - GUARDIANS AD LITEM IN FAMILY
VIOLENCE CASES

Table Of Contents
A.

Value of Guardians Ad Litem in Family Violence Cases......................... J:2

Among other things, the GAL’s report should address: ....................................... J:3
B.

Uniform Superior Court Rule 24.9 -- Appointment, Qualification and Role
of a Guardian ad Litem. ............................................................................ J:3

1.

Appointment ............................................................................................. J:3

2.

Qualifications ............................................................................................ J:3

3.

Role and Responsibilities.......................................................................... J:4

4.

Duties ........................................................................................................ J:4

5.

Release to GAL of a Party’s Confidential Information from
Non-Parties ............................................................................................... J:5

6.

Written Report .......................................................................................... J:5

7.

Role at Hearing and Trial .......................................................................... J:6

8.

General and Miscellaneous Provisions ..................................................... J:6

C.

Distinguishing the Roles of Guardian ad Litem and Child’s Attorney ..... J:7

J:1

A.

Value of Guardians Ad Litem in Family Violence Cases
Protecting the interests of children affected by domestic violence poses special
challenges for the court. In a domestic violence case, both parents are typically
caught up in a control dynamic that may distort their judgment or compromise
their ability to discern their children’s needs and best interests. Furthermore,
batterers frequently employ their “parental rights” to manipulate and maintain
control over their victims following separation. Given this dynamic, it is
particularly appropriate for a court to utilize guardians ad litem to assist it in
protecting the interests of children affected by family violence.
Children who are subjected to violence or witness violence by one parent against
the other suffer serious and often long-term consequences. These children
frequently have behavioral, social, and emotional problems, including: higher
levels of aggression, anger, hostility, oppositional behavior, and disobedience;
fear, anxiety, withdrawal, and depression; poor peer, sibling, and social
relationships; and low self-esteem. They also may develop cognitive and
attitudinal problems such as: lower cognitive functioning; poor school
performance; limited conflict resolution and problem solving skills; pro-violence
attitudes; and belief in rigid gender stereotypes and male privilege. Long-term,
survivors of violent childhood homes may manifest higher levels of adult
depression and trauma symptoms, and increased tolerance for and use of violence
in adult relationships.
A GAL can offer information, insight and recommendations to assist the court in
tailoring its orders to protect children from a violent parent, to assist children in
overcoming the effects of domestic violence, and to reduce the opportunities for
children to continue to be used as tools of a batterer’s efforts to control his victim.
A GAL can ensure that domestic violence issues are addressed. In many highconflict custody cases, domestic violence may be a silent issue. It may not be
mentioned in the pleadings and the victim may not have disclosed the issue to
anyone. A case may be permeated with domestic violence issues, but there may
be no Temporary Protective Order, police report or medical records.
Appointment of a GAL provides independent eyes and ears to assist the court in
determining whether domestic violence is a factor and in evaluating its scope and
impact in a case.
A GAL can make the parties and the Court aware of the availability and
advisability Protective Orders, batterer’s intervention, survivor support and other
protective or assistive services in a given case. Since children’s primary
caretakers are more often victims than perpetrators of domestic violence,
advocating safety measures often falls within the GAL’s duty to represent the
children’s best interests. Furthermore, a properly trained GAL can evaluate the
particular circumstances of a family and assist the parties and the court in
identifying appropriate services for the parents and the children.

J:2

The GAL can recommend specific measures to shield children from the violent
dynamics of their parents’ relationship. The GAL can assist the court in
achieving adequate specificity in orders involving on-going contact among the
parents and children. When violence has been present in the home, neither the
Court nor the GAL can assume the parties will be able to reasonably resolve any
issue on which they disagree. Moreover, in a relationship tainted by domestic
violence, parental decision-making is often driven by the control dynamic
between the adults, rather than by the needs of the children. Consequently, orders
governing on-going interaction among family members must be especially clear
and specific—nothing may be left to interpretation or chance.
Among other things, the GAL’s report should address:
1.
The advisability of prohibiting visitation until completion of a batterer’s
intervention program, restricting visitation to a therapeutic setting for
some period, or requiring supervision of visits by an individual or agency
capable of controlling the interactions between the batterer and the
children to prevent further violence or manipulation.
2.
Appropriate visitation procedures such as where the exchange of the
children will take place (For safety, the exchange may need to be at a
neutral, public location, specified by the court), how long the custodial
parent will be required to wait before the visit is deemed cancelled, and
what circumstances or actions justify cancellation or termination of a visit.
3.
On-going parental decision-making—Joint custody arrangements should
be avoided in domestic violence cases, because any power over decisionmaking gives the batterer on-going opportunities to assert control over the
victim. If the Court is not inclined to make the victim the sole legal
custodian, however, the decision-making process needs to be clearly
delineated and the custodial parent should retain final decision-making
authority. A GAL may assist the court by recommending means of
communication, deadlines for response and other particulars to circumvent
the control dynamic. (See Appendix C)
B.
Uniform Superior Court Rule 24.9 -- Appointment, Qualification and Role of a
Guardian ad Litem.
1.
Appointment
The Guardian ad Litem (“GAL”) is appointed to assist in a domestic
relations case by the superior court judge assigned to hear that particular
case, or otherwise having the responsibility to hear such case. The
appointing judge has the discretion to appoint any person as a GAL so
long as the person so selected has been trained as a GAL or is otherwise
familiar with the role, duties, and responsibilities as determined by the
judge. The GAL may be selected through an intermediary.
1.9Qualifications
GAL shall receive such training as provided by or approved by the Circuit
in which the GAL serves. This training should include, but not be limited
to, instruction in the following subjects: domestic relations law and

J:3

procedure, including the appropriate standard to be applied in the case;
domestic relations courtroom procedure; role, duties, and responsibilities
of a GAL; recognition and assessment of a child’s best interests; methods
of performing a child custody/visitation investigation; methods of
obtaining relevant information concerning a child’s best interest; the
ethical obligations of a GAL, including the relationship between the GAL
and counsel, the GAL and the child, and the GAL and the court;
recognition of cultural and economic diversity in families and
communities; base child development, needs, and abilities at different
ages; interviewing techniques; communicating with children; family
dynamics and dysfunction, domestic violence and substance abuse;
recognition of issues of child abuse; and available services for child
welfare, family preservation, medical, mental health, educational, and
special needs, including placement/evaluation/diagnostic treatment
services.
1.10Role and Responsibilities
The GAL shall represent the best interests of the child. The GAL is an
officer of the court and shall assist the court and the parties in reaching a
decision regarding child custody, visitation and child-related issues.
Should the issue of child custody and/or visitation be tried, the GAL shall
be available to offer testimony in accordance with provision 6 and 7
herein.
The GAL holds a position of trust with respect to the minor child at issue,
and must exercise due diligence in the performance of his/her duties. A
GAL should be respectful of, and should become educated concerning,
cultural and economic diversity as may be relevant to assessing a child’s
best interests.
A GAL’s appointment, unless ordered otherwise by the Court for a
specific designated period, terminates upon final disposition of all matters
pertaining to child custody, visitation and child-related issues. The GAL
shall have the authority to bring a contempt action, or other appropriate
remedy, to recover court-ordered fees for the GAL’s services.
1.11Duties
By virtue of the order appointing a GAL, a GAL shall have the right to
inspect all records relating to the minor child maintained by the Clerk of
the Court in this and any other jurisdiction, other social and human service
agencies, the Department of Family and Children Services, and the
Juvenile Court. Upon written release and/or waiver by a party or
appropriate court order, the GAL shall have the right to examine all
records maintained by any school, financial institution, hospital, doctor or
other mental health provider, any other social or human services agency or
financial institution pertaining to the child which are deemed confidential
by the service provider. The GAL shall have the right to examine any
residence wherein any person seeking custody or visitation rights proposes
to house the minor child. The GAL may request the court to order
examination of the child, parents or anyone seeking custody of the child,

J:4

by a medical or mental health professional, if appropriate. The GAL shall
be entitled to notice of, and shall be entitled to participate in all hearings,
trials, investigations, depositions, settlement negotiations, or other
proceedings concerning the child.
1.12Release to GAL of a Party’s Confidential Information from Non-Parties
GAL’s right to request and receive documents and information from
mental health professionals, counselors, and others with knowledge of a
confidential nature concerning a party is conditional upon the party
agreeing to sign a release allowing the GAL access to such records and
information.
Upon receipt of a party’s signed waiver/release form, the GAL shall have
the right to inspect all records, documents and information relating to the
minor child(ren) and/or the parties maintained by any mental health
professionals, counselors and others with knowledge of a confidential
nature concerning a party or minor child.
1.13Written Report
Unless otherwise directed by the appointing judge, the GAL shall submit
to the parties or counsel and to the Court a written report detailing the
GAL’s findings and recommendations at such time as may be directed by
the assigned judge. At trial, the report shall be admitted into evidence for
direct evidence and impeachment purposes, or for any other purposes
allowed by the laws of this state. The court will consider the report,
including the recommendations, in making its decision. However, the
recommendations of the GAL are not a substitute for the court’s
independent discretion and judgment, nor is the report a substitute for the
GAL’s attendance and testimony at the final hearing, unless all parties
otherwise agree.
a)
Contents of Report
The report shall summarize the GAL’s investigation, including
identifying all sources the GAL contacted or relied upon in
preparing the report. The GAL shall offer recommendations
concerning child custody, visitation, and child-related issues and
the reasons supporting those recommendations.
b)
Release of Report to Counsel and Parties
The Report shall be released to counsel (including counsel’s staff
and experts) and parties only, and shall not be further disseminated
unless otherwise ordered by the Court.
c)
Release of GAL’s File to Counsel
If ordered by the Court, the parties and their counsel shall be
allowed to review and/or copy (and shall pay the cost of same) the
contents of the GAL’s file.
d)
Unauthorized Dissemination of GAL’s Report and
Contents of File
Any unauthorized dissemination of the GAL’s Report, its contents
or the contents of the GAL’s file by a party or counsel to any

J:5

person, shall be subject to sanctions, including a finding of
contempt by the Court.
e)
Sealing of Written Report
If filed, the Report shall be filed under seal by the Clerk of
Superior Court in order to preserve the security, privacy, and best
interests of the children at issue.
1.14Role at Hearing and Trial
It is expected that the GAL shall be called as the Court’s witness at trial
unless otherwise directed by the Court. The GAL shall be subject to
examination by the parties and the court. The GAL is qualified as an
expert witness on the best interest of the child(ren) in question. The GAL
may testify as to the foundation provided by witnesses and sources, and
the results of the GAL’s investigation, including a recommendation as to
what is in a child’s best interest. The GAL shall not be allowed to
question witnesses or present argument, absent exceptional circumstances
and upon express approval of the Court.
1.15General and Miscellaneous Provisions
a)
Requesting Mental Fitness and Custody Evaluations
Based upon the facts and circumstances of the case, a GAL may
request the Court to order the parties to undergo mental fitness
and/or custody evaluations to be performed by a mental health
expert (See Appendix I, Paragraphs 1-2), approved by the Court.
The Court shall provide for the parties’ responsibility for payment
of fees to the appointed experts.
b)
Filing Motions and Pleadings
If appropriate, the GAL may file motions and pleadings if the GAL
determines that the filing of such motion or pleading is necessary
to preserve, promote, or protect the best interest of a child. This
would include the GAL’s right to file appropriate discovery
requests and request the issuance of subpoenas. Upon the filing of
any such motions or pleadings, the GAL shall promptly serve all
parties with copies of such filings.
c)
Right to Receive Notice of Mediations, Hearings and Trials
Counsel shall notify the GAL of the date and time of all
mediations, depositions, hearings and trials or other proceedings
concerning the children(ren). Counsel shall serve the GAL with
proper notice of all legal proceedings, court proceedings wherein
the child(ren)’s interests are involved and shall provide the GAL
with proper and timely written notice of all non-court proceedings
involving the child(ren)’s interests.
d)
Approval of Settlement Agreements
If the parties reach an Agreement concerning issues affecting the
best interest of a child, the GAL shall be so informed and shall
have the right and opportunity to make objections to the Court to
any proposed settlement of issues relating to the children prior to
the Court approving the Agreement.

J:6

e)
Communications Between GAL and Counsel
A GAL may communicate with a party’s counsel without
including the other counsel in the same conversation, meeting or, if
by writing, notice of the communication. When communicating
with the GAL, counsel is not required to notify opposing counsel
of the communication or, if in writing, provide opposing counsel
with a copy of the communication to the GAL.
f)
Ex Parte Communication Between GAL and the Court
The GAL shall not have ex parte communications with the Court
except in matters of emergency concerning the child’s welfare or
upon the consent of the parties or counsel. Upon making
emergency concerns known to the Court, the GAL may request an
immediate hearing to address the emergency. Notification shall be
provided immediately to the parties and counsel of the nature of
the emergency and time of hearing.
g)
Payment of GAL Fees and Expenses
It shall be within the Court’s discretion to determine the amount of
fees awarded to the GAL, and how payment of the fees shall be
apportioned between the parties. The GAL’s requests for fees
shall be considered, upon application properly served upon the
parties and after an opportunity to be heard, unless waived. In the
event the GAL determines that extensive travel outside of the
circuit in which the GAL is appointed or other extraordinary
expenditures are necessary, the GAL may petition the Court in
advance for payment of such expenses by the parties.
h)
Removal of GAL from the Case
Upon motion of either party or upon the court’s own motion, the
court may consider removing the GAL from the case for good
cause shown.
C.

Distinguishing the Roles of Guardian ad Litem and Child’s Attorney
In some domestic violence cases it may be necessary or desirable for a child to
have independent legal counsel, whether or not the court has chosen to utilize the
services of a guardian ad litem, and it is necessary for the court and the parties to
recognize the differences in these roles.
A guardian ad litem is an investigator and expert witness, and does not enter into
any attorney-client relationship. A guardian ad litem has no duty of
confidentiality (except the duty under Rule 29.4(6) (d) to prevent unauthorized
dissemination of the GAL’s report and file), and no work-product privilege. A
guardian ad litem generally may not question witnesses or present argument, but
is expected to submit a report of his or her investigation to the parties and the
court and to testify at trial. The GAL is also expected to exercise his or her
independent judgment in defining a child’s best interests and recommending a
course of action to the parties and the court.

J:7

In contrast, an attorney for a child enters into a normal attorney-client relationship
with the child. The attorney is bound by the duty of confidentiality (Georgia Rule
of Professional Conduct 1.16(a); and generally is prohibited from acting as legal
counsel in any case where he or she is a necessary witness. (Georgia Rule of
Professional Conduct 3.7). An attorney for a child is expected to offer evidence
and argument and to cross-examine witnesses, as necessary pursuant to the duties
to provide competent and diligent representation (Georgia Rules of Professional
Conduct 1.1 and 1.3). Furthermore, at least to the extent the child is capable of
making adequately considered decisions, the attorney is bound by the child’s
direction concerning the objectives of the representation (Georgia Rules of
Professional Conduct 1.2 and 1.14).

J:8

K.

APPENDIX K - MEDIATION

Table Of Contents
A.

Introduction ............................................................................................. K:2

1.

Why is mediation in domestic violence cases so controversial? ............ K:2

2.

Is mediation sometimes appropriate in cases involving
domestic violence? .................................................................................. K:3

3.

How do Georgia’s current mediation guidelines deal with
domestic violence? .................................................................................. K:4

4.

Are the guidelines always followed? ...................................................... K:4

5.

Practically speaking, how does Georgia’s current screening
work?....................................................................................................... K:5

6.

What steps could we take to improve the mediation process?................ K:5

B.

Georgia Commission on Dispute Resolution.......................................... K:6

Preamble ........................................................................................................... K:66
Guidelines For Mediation In Cases Involving Issues Of Domestic
Violence ................................................................................................ K:88
A.
B.

C.

D.

Phase One - Initial Screening of All Domestic Relations Cases ...................... K:10
Phase Two ......................................................................................................... K:11
1.
Further Screening ...................................................................... K:11
2.
Informed Consent...................................................................... K:11
Phase Three ....................................................................................................... K:13
1.
Referral to Mediation if Domestic Violence Alleged ............... K:13
2.
Safeguards For The Mediation Session .................................... K:14
Confidentiality In Screening For Domestic Violence ....................................... K:14
Appendix A Guidelines for Phase II Screening .............................................. K:15

C.
D.
1.
2.
3.
4.

I.
Contacting the alleged victim: .................................................. K:15
II.
Information to be included in the screening interview: ............ K:15
Concerns About the Use of Mediation in Cases Involving
Domestic Violence ................................................................................ K:16
Safeguards for Judicial Consideration in Mediated Agreements .......... K:17

Custodial Arrangements.................................................................................... K:18
Visitation Arrangements ................................................................................... K:18
Telephone Contact ............................................................................................ K:19
Financial Issues ................................................................................................. K:19
K:1

A.

Introduction
The Georgia Supreme Court’s Commission on Dispute Resolution
is responsible for establishing policies governing court-connected
alternative dispute resolution programs in Georgia. The Commission has
established policy in the form of written guidelines on mediation in
domestic violence cases. The Commission’s Guidelines for Mediation in
Cases Involving Issues of Domestic Violence and Guidelines for Screening
for Domestic Violence by the Court and the ADR Program were originally
issued in 1995 and revised by the Commission in 2003. The
Commission’s Guidelines are set forth in their entirety in Section B.
When these guidelines were developed and later revised, there was
strong resistance to the use of mediation in cases involving domestic
violence. It was generally believed that mediation is inconsistent with the
needs of victims of domestic violence who would not be able to speak up
against their abusive partners during the process. These concerns are
reflected in the joint statement in Section C presented by The Georgia
Commission on Family Violence and the Georgia Coalition Against
Domestic Violence on the dangers involved in the use of mediation. This
statement first appeared in the third edition of the bench book. They also
provide a list of safeguards to consider when the court reviews mediated
agreements in Section D.
The use of mediation remains a controversial issue within the
domestic violence community. However, a growing number of scholars
and advocates are recognizing that mediation—done properly—may
actually better serve victims and survivors of domestic violence than the
alternative of litigation. In the sixth edition of this benchbook we expand
on this viewpoint, and offer suggestions for judges to consider.
1.

Why is mediation in domestic violence cases so controversial?
Cases involving allegations of domestic violence present a unique
controversy in divorce mediation policy. The use of mediation to resolve family
court issues began in 1980 in California when every divorcing couple was
required to go through mediation to resolve custody and visitation issues.
Throughout the 1990s, similar measures spread across the country because
mediation reduces the burden on the court system and improves the efficiency of
the divorce process. However, there was concern from domestic violence
advocates that victims of domestic violence would be unable to voice their true
interests in the presence of their abusers. Conceptualizing domestic violence as a
systematic effort to gain power and control over the victim through a variety of
abusive tactics (cross reference Appendix A for discussion of different theories
and definitions of domestic violence), advocates argued that the power imbalance
present in abusive relationships would impede the victim’s ability to advocate for
child support, alimony, and custody rights. Pressure from battered women’s
advocates led policymakers in most states to include limitations to the standard

K:2

mediation requirements in domestic violence cases. These provisions generally
rest on the assumption that mediation is never appropriate for a victim of
domestic abuse and litigation is better suited to protect the interests of the victim.
Standard provisions include some sort of screening for domestic violence
in order to obtain informed consent to participate from the victim as well as to
give a chance to opt out of the mediation process.

1.16Is mediation sometimes appropriate in cases involving domestic
violence?
Sometimes, yes. First of all, not every act of family violence as defined
by statute occurs within a context of control Some violence is episodic, and there
may not be a significant power imbalance in these relationships. Even in
relationships where there is a dynamic of control, mediation is a non-adversarial
process, takes less time, and can give the victim more control over the outcomes.
Some studies have shown that divorcing parties report greater satisfaction with
mediation than with litigation, even in cases that involved emotional or physical
abuse (Davies, Ralph, Hawton, & Craig, 1995; Depner, Cannata, & Ricci, 1994).
Scholars also point out that low-income victims of domestic violence often have
no access to legal representation, and if screened out of mediation may be at
greater risk than if they were able to mediate their issues (Beck & Raghavan
2010).
Safeguards for the protection of domestic violence victims have been
developed and used effectively in mediation settings. These include:
 establishment of security measures for the arrival and departure of the
victim and abuser
 meeting with the parties alone prior to the start of mediation
 establishing a distress signal for victims to discreetly alert the mediator to
stop the session
 use of caucus or shuttle in mediation, or frequent use of caucus in joint
sessions just to check in with the victim
 permission to have a friend, advocate, or attorney at the mediation.
Using these and other safeguards, a mediator takes steps to ensure the safety of
the parties during the mediation, and produces a settlement with specific
guidelines to prevent future violence.
It is important for the mediator to recognize the abusive or controlling
history before beginning the mediation. Differentiation between types of domestic
violence and proper training on how to correct the power imbalance allow a
mediator to promote safety while maximizing the benefits of an agreement
specific to the couple’s situation.
The most severe cases of domestic violence should go through litigation
rather than mediation. However, mediation should not automatically be ruled out
for domestic violence cases if mediators with the proper training are available.

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1.17How do Georgia’s current mediation guidelines deal with domestic
violence?
When a couple seeks divorce in Georgia, the court system conducts the
initial domestic violence screening process, checking for a criminal history of
domestic violence, a family violence temporary protective order or mention of
domestic violence in the pleadings themselves. These cases are set aside for the
next phase of screening. At this point, every district does things slightly
differently. Most programs then ask the alleged victim eleven screening questions
outlined in the Guidelines for Mediation in Cases Involving Issues of Domestic
Violence. These questions focus on how the victim feels about her partner and
how comfortable she is around him. Based on the responses, the court advises
how the domestic abuse situation could affect the mediation, and the victim is
then given the opportunity to opt out of mediation. If she chooses to mediate, the
couple is directed to specially trained domestic violence mediators in the local
ADR office.
The Georgia Office of Dispute Resolution (GODR) regulates the
Alternative Dispute Resolution system. Currently, all divorce mediators receive
limited domestic violence training during the forty-two hour Divorce and Family
Mediation training. However, the type and degree of the training depends on the
specific program, since the GODR approves curricula from a variety of
professional development firms, collegiate faculty, and individual trainers.
Additionally, the GODR establishes special fourteen hour training requirements
for mediators who will deal with domestic violence. The Guidelines require that
at least two mediators in each ADR program have the extra domestic violence
training, and some ADR programs require all mediators to have both.
When a couple is referred to an ADR program with allegations of
domestic violence, they receive a mediator with the special domestic violence
training. The mediator decides how to conduct the mediation based on his or her
assessment of the situation.
1.18Are the guidelines always followed?
In practice, these procedures vary widely across the state. Some ADR
programs are so overloaded that they aren’t able to conduct the screenings at all.
Other programs conduct more thorough screening than the guidelines require.
Sometimes the screening occurs over the phone, and sometimes it occurs in
person. In some districts, the eleven screening questions are asked by the
mediator. In others, the intensive intake assessment in the court conducts this
questionnaire. Some programs require all mediators, regardless of caseload, to
receive the extra domestic violence training.
There are limited continuing education requirements for domestic violence
in mediation, so some mediators were trained long ago, and may not have studied
how to recognize signs of coercive control or review lethality factors in a

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relationship. There are significant differences in the mediation process across the
districts in Georgia.
1.19Practically speaking, how does Georgia’s current screening work?
In general, the domestic violence risk assessment process in Georgia fails
to screen for domestic violence unless it is self-reported through an arrest report,
the filing of a TPO, or an attorney suspects a problem. Usually, it’s only in those
cases that the victim is asked the eleven questions about mediation, and only those
couples are required to see a mediator with domestic violence training if the
victim doesn’t opt out. However, many cases are not flagged by either of these
indicators because the victim fears reprisals for reporting the problems or the
abusive behavior has not escalated enough to file for a TPO. Domestic Violence is
one of the most chronically underreported crimes in the United States.
Approximately 60% of family violence victimizations were reported to police
between 1998 and 2002 (Durose, 2005). Furthermore, only 20% of the 1.5 million
people who experience intimate partner violence annually obtain civil protection
orders (Tjaden et. al, 2000). Therefore countless cases go through the standard
mediation process without a specially trained domestic violence mediator.
The degree of screening can vary across districts due to the individual
requirements of the ADR centers. Furthermore, the eleven questions are only
asked of the alleged victim of violence and focus on her fears, not the actual
history of coercive behavior. This method fails to provide the mediator sufficient
information on the context of control in the relationship—arguably the most
significant issue in determining the appropriateness of mediation.
Another concern is the fact that when violence is self-reported, the abuser
sometimes makes him/herself out as the victim. If the victim uses violent
resistance, then it is even possible that the victim of violence will have a more
serious criminal record than the actual abuser, in which case the offender will be
misrepresented in the court record. Thus, in the current process, a victim could be
treated as the abuser based on previous violent record when in fact the abuser
exhibits more coercive controlling and intimidating behaviors.
1.20What steps could we take to improve the mediation process?
First, the domestic violence screening process could focus on indicators of
the parties’ ability to represent themselves in a standard mediation setting or a
specialized mediation process that takes domestic violence into account (Adkins,
2010). Rather than only obtaining informed consent, the goal of the screening
could be to better prepare mediators to evaluate the couple’s situation and offer a
mediation setting suitable to the power dynamic present. The current screening
emphasizes informed consent for the victim of violence, when several factors—
including the level of coercive control in a relationship, the degree of the power
imbalance between a couple, and the context of control, whether violent or
emotional—affect the dynamics between the couple (Johnson 2009).

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These indicators are significant delineations for the court and the
mediators to evaluate. In fact, some scholars contend that measuring coercive
control is the most efficient screening mechanism in the mediation context (Beck
& Raghavan, 2010), thus utilizing an instrument designed to reveal its presence
(including questions about coercion, isolation, jealousy, history of emotional and
sexual abuse, threats and escalation of violence) would potentially improve safety
for victims.
Although it is not the mediator’s responsibility to stop post-divorce
violence, the mediation process is a keystone to establishing a responsible postdivorce arrangement for at-risk couples. Effective mediations depend on
knowledge of the couple’s history and coercive relationship; therefore, effective
screening ought to focus on so informing the mediator.
Some scholarship suggests that both parties in the divorce, regardless of
past criminal record, ought to go through the same screening questions. Both
parties should receive counsel during private meetings with the mediator
regarding the specifics of the process and the style of mediation to be used
(Adkins, 2010).
Next, domestic violence training for all mediators could be made
mandatory to reduce the number of possible domestic abuse cases that go through
mediation unrecognized. This way, when a domestic violence case is not caught
through the screening process, any mediator would be able to recognize the signs
of coercive and controlling behaviors, and would also be equipped to implement
the necessary safety precautions for abuse cases including meeting privately with
the parties before mediation, caucusing in mediations, staggered arrival times, and
specific terms of agreement. Mandating periodic continuing education in domestic
violence for all mediators would help ensure that they are up to date in their
understanding of this complicated issue.
After the discovery of domestic abuse, mediators could also offer the
victim resources and contacts in local domestic abuse centers. Services for
domestic violence victims provide the resources to help them move on both
psychologically and legally. It could easily become a standard of practice for all
mediators to keep literature available about nearby shelters or centers.

B.

Georgia Commission on Dispute Resolution
Domestic violence mediation policy and guidelines applicable to
all court-connected alternative dispute resolution programs.
Preamble
To Guidelines For Mediation In Cases Involving Issues Of Domestic
Violence

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The Committee on Ethics of the Georgia Commission on Dispute
Resolution studied the issue of mediation in cases involving allegations of
domestic violence. It is apparent that mediation is a process that continues
to evolve. Those who believe in the value of mediation hold strong views
about whether it is appropriate in cases involving issues of domestic
violence. Many feel that mediation of some issues is appropriate. It is
also clear that advocates of battered women have equally strong views
about mediation's inappropriateness in these cases.
The Committee on Ethics conducted a hearing on June 28, 1994.
Experienced mediators, the Chair of the Committee on Family Violence,
judges, and a program director participated in the meeting. The
Committee also read a number of articles and studies from other states
concerning this issue. The Director has talked with advocates for battered
women and men who have worked with batterers’ groups for years. From
all this investigation and discussion, the Committee presented certain
guidelines to the entire Commission, which were adopted at the December
1994 meeting of the whole Commission.
The Committee on Ethics found that there are two diverse and very wellreasoned arguments as to whether mediation is appropriate for cases that
involve domestic violence or allegations of serious domestic violence.
The first is that mediation is never appropriate in these cases by the very
nature of and premise of mediation. The other is that if the cases are
carefully screened and the mediator is trained to handle these cases,
mediation can be used to reach a settlement of some issues. It was clear
from all sources that violence itself cannot be the subject of mediation and
that mediation is not a substitute for counseling, education, and legal
sanctions. This led to the clearest guideline, that no criminal cases
involving domestic violence should be referred to mediation. The violent
act or acts must be dealt with through the actual court procedure in order
to emphasize the seriousness of the act and the fact that domestic violence,
where proved, is indeed against the law.
The Committee does not agree with those who believe that mediation is
never appropriate in cases involving domestic violence. The Committee
finds compelling the argument that to automatically exclude these cases
denies a victim of domestic violence the opportunity to use what can be a
very worthwhile alternative to the battleground of the courtroom. Thus,
the Committee recommended Guidelines that reflected this philosophy,
and the Commission adopted them in 1995.
The Strategic Planning Committee of the Georgia Commission on Dispute
Resolution reviewed the Guidelines for Mediation in Cases Involving
Issues of Domestic Violence in 2002-2003. The Committee adheres to the

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general principles expressed in the 1995 guidelines that cases involving
allegations of domestic violence should not be automatically excluded
from the mediation process. The Committee focused on the intake and
screening procedures required in these guidelines. Based on information
from programs across the state, the Committee proposed amendments to
the guidelines that would: allow all alleged victims of domestic violence
to choose, based upon informed consent, whether or not to utilize
mediation; enable ADR programs to more consistently apply the screening
guidelines; clarify the nature of informed consent to participate in
mediation; provide that all alleged victims of domestic violence are
referred to a specially trained mediator; and, place the responsibility of
assessing the benefit of participating in the mediation process on the
alleged victim and her/his attorney rather than the program director.
Thus, the Commission on Dispute Resolution approved the following revised guidelines
on May 20, 2003 to be implemented by all the ADR programs no later than November 1,
2003.
Guidelines For Mediation In Cases Involving Issues Of Domestic
Violence1
For purposes of these guidelines and the procedures that implement them,
domestic violence is defined as follows:
Causing or attempting to cause physical harm to a current or former
intimate partner or spouse; placing that person in fear of physical harm;
or causing that person to engage involuntarily in sexual activity by force,
threat of force or duress.
In addition to acts or threats of physical violence, for purposes of these
guidelines, domestic violence may include abusive and controlling
behaviors (such as intimidation, isolation, and emotional, sexual or
economic abuse) that one current or former intimate partner or spouse
may exert over the other as a means of control, generally resulting in the
other partner changing her or his behavior in response. Even if physical
violence is not present in these circumstances, such a pattern of abusive
behavior may be a critical factor in whether or not a party has the
capacity to bargain effectively. Therefore, a person conducting screening
for domestic violence must be alert to patterns of behavior that, while not
overtly violent, may indicate a pattern of domestic abuse that should be
treated as domestic violence for purposes of these guidelines.
1.
Criminal cases that involve domestic violence should not
be referred to mediation from any court.
1

Approved by the Georgia Commission on Dispute Resolution on May 20,2003, to
replace the Guidelines adopted April 6, 1995.

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2.
Cases arising solely under the Family Violence Act should
not be referred to mediation from any court.2
3.
All court programs should screen domestic relations cases
for domestic violence through intensive intake.3 Those domestic relations
cases referred to mediation directly from the bench are also subject to the
domestic violence screening process. Intake procedures should be
designed to identify those cases, which involve allegations of domestic
violence.
The Georgia Commission on Dispute Resolution and the Georgia
Office of Dispute Resolution will develop guidelines to assist courts in
designing appropriate intake procedures and training for intake personnel.
Existing programs should send a description of present intake and
screening procedures to the Georgia Commission on Dispute Resolution
for review. New programs should include such a description on any rules
submitted to the Commission for approval.
4.
When intake and screening procedures are in place4 and
there are mediators available who have advanced domestic violence
training, and the alleged victim chooses to proceed with mediation, those
cases may be referred to mediation. However, only mediators who have
received special training should mediate such cases. The Georgia
Commission on Dispute Resolution and the Georgia Office of Dispute
Resolution will assist courts in developing appropriate training.
5.
Every program should have no less than two mediators who
have received special training in domestic violence.
6.
If allegations of domestic violence arise in the context of a
mediation, any mediator who has had no special training in handling cases
involving domestic violence should in most instances conclude the
mediation and send the case back to the court. In concluding the
mediation, the mediator should take precautions to guard the safety of the
participants, particularly the alleged victim, and of the mediator.
2

A case filed as a divorce action or other domestic relations matter that contains a count
under the Family Violence Act is not precluded from referral to mediation and should be
screened pursuant to these guidelines; provided, however, that issues related to protection
from violent behavior are not an appropriate subject of mediation or negotiation. This
provision was added by the Commission on Dispute Resolution on March 22, 2005.
3
While it is intended that the intake and screening protocol will be routinely applied to
all domestic relations cases, programs can also use the screening process when
allegations of domestic violence arise in other types of cases such as juvenile court and
probate court matters.
4
The term “intake” refers to the procedure for identifying cases involving allegations of
domestic violence, and the term “screening” refers to discussion with the alleged victim
to determine whether s/he chooses to proceed with mediation

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Guidelines For Screening For Domestic Violence By The Court And
The ADR Program
Approved by the Georgia Commission on Dispute Resolution: May
20, 2003
I. Screening
Screening for domestic violence is a shared responsibility of the court,
program directors, attorneys, mediators, and parties. However, the final
determination as to appropriateness of mediation will by made by the
court.
All ADR programs should seek to educate the public about mediation in
general and about the factors which should be considered in gauging the
appropriateness of mediation in a case involving allegations of domestic
violence. Mediation brochures and parenting seminars for divorcing
couples may be vehicles for dissemination of this information.
A.
Phase One - Initial Screening of All Domestic Relations Cases
(a) At the initial screening stage, the ADR program should determine
whether either party has filed a petition under the Family Violence Act.
For purposes of these guidelines, a petition filed pursuant to the Family
Violence Act against the other party is considered an indication of
domestic violence, as is any verbal or written statement alleging domestic
violence made in pleadings or in the screening process.
If there is or has been a petition filed under the Family Violence Act, the
program should proceed to Phase II of the screening process. 5
(b) If there has been no petition for a protective order under the Family
Violence Act, it is the responsibility of the program to continue with Phase
I of the screening process and inquire about domestic violence in every
domestic relations case. This screening inquiry may be accomplished by
various means such as: contact with the attorneys and parties; written
5

A case that is filed solely pursuant to the Family Violence Act should not be referred to
mediation, and, if referred, should be returned to the court process as inappropriate for
mediation. The Guidelines apply to domestic relations cases, other than cases filed solely
under the FVA, that may contain a claim for relief under the FVA among other claims.
The purpose of Subsection (I)(A)(a) is to indicate that a petition for or order granting
relief pursuant to the FVA, whether past or pending, is a clear indication to the screener
that domestic violence allegations are or have been a factor in the case that has been
referred to mediation, and that the screener should proceed with the informed consent
interview process with the alleging party so that the party can make a decision about
whether or not to participate in mediation. This provision is not intended to imply that
cases filed solely pursuant to the FVA should be referred to mediation. This explanatory
footnote was added by the Commission on Dispute Resolution on March 22, 2005.

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questionnaires; a “check-off” question on a referral to mediation notice or
a written communication to the parties that they should contact the
program if there are any allegations of domestic violence. If programs
review pleadings for allegations of domestic violence, the absence of such
allegations in the pleadings does not end the screening inquiry. Programs
that screen pleadings for domestic violence must also use other means of
screening in every domestic relations case. It then becomes the
responsibility of the parties and their attorneys to inform the ADR
program of any domestic violence allegations. When the party and/or
attorney has indicated that there may be domestic violence, it is the
responsibility of the program to follow up on these indications of domestic
violence and continue with Phases II and III of the screening process.
(c) If there is no indication of domestic violence, then the case will be
scheduled for mediation in the routine manner.
(d) If there is an indication of domestic violence in Phase I, then the
program will contact the party alleging domestic violence to obtain further
information as set forth in Phase II. If that party is represented by counsel,
her or his attorney must be contacted first and given an opportunity to
participate in further screening should s/he choose to do so.
B.

Phase Two
Further Screening Where There Is an Indication of Domestic
Violence
1.
Further Screening: The means by which a program elicits this
screening information is to be determined by each program and,
ultimately, approved by the Georgia Commission on Dispute Resolution.
Screening techniques should include personal contact, either by telephone
interview or face-to-face interview. The person conducting the screening
interview shall be a trained mediator who has had advanced domestic
violence mediation training. In selecting the screening technique,
personnel should be aware that the screening process itself could place a
victim at risk, and must therefore ensure that the screening is conducted
under safe and confidential circumstances.
If direct contact reveals that there is in fact no allegation of domestic
violence (because the indication in Phase I resulted from a
miscommunication, clerical error, etc.), then the case may be scheduled
for mediation in the normal manner. If there is an allegation of domestic
violence, the process continues in order to ensure that the alleged victim is
fully informed about the mediation process before making a decision
whether to proceed with mediation.
2.

Informed Consent:

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Informed consent involves two aspects of information to be discussed with
the alleged victim: (1) information about the mediation process; and (2)
information about how the individual’s circumstances may affect her or
his ability to function in the mediation setting. Because the dynamics of a
relationship characterized by a pattern of violent and abusive behavior
may manifest in mediation, an alleged victim of such behaviors is
provided with choice in order to avoid further victimization or
endangerment.
The Ethical Standards for Neutrals (Appendix C, Chapter 1, Alternative
Dispute Resolution Rules) place primacy on the principles of selfdetermination and voluntariness. These standards also require that parties
be fully informed about the mediation process. In keeping with these
principles, and the necessity of protecting participants, an alleged victim
of domestic violence will be given the opportunity to exercise choice
about whether to proceed with mediation prior to assignment of the case.
To ensure that the alleged victim’s choice to proceed with mediation is
self-determined, s/he must be provided with sufficient information about
the process to make an informed choice. At a minimum, the nine items set
forth in “Ethical Standard I. Self-Determination/Voluntariness, A” must
be explained. This information may be conveyed informally in
conversation between screening staff and the alleged victim, and may be
discussed in conjunction with the following screening questions. (Please
see Appendix A of this document.) While mediation is oriented towards
the future, past and/or present patterns of party interaction can have a
significant impact upon the process. Questions about party interaction are
a valuable tool for ensuring that the alleged victim has enough information
about the mediation process to make an informed decision about whether
s/he wishes to proceed with mediation. For this reason, ADR programs
should make a good faith effort through some screening technique to
discuss the following questions with the party alleging domestic violence.
The purpose of this process extends beyond obtaining information and
should assist the party in focusing on barriers and the capacity to mediate.
1.

Can you tell me more about what has happened that led you to file for a
protective order (or say there has been violence, etc.)?

2

Mediation is a process that helps parties to plan for the future. Are you
able at this time to think about your own future needs?

3.

Have you had an opportunity to think about your own needs, interests and
concerns separate from those of your spouse?

4.

Do you think that you will be able to talk about your needs, interests and
concerns if your spouse is in the room?

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5.

Is there any reason that you do not feel able to discuss your needs openly
with your spouse?

6.

Are you able to disagree with your spouse and talk about that
disagreement? Do you feel safe in saying no to things that you do not
agree with?

7.

Do you have concerns about sitting in the same room with your spouse?

8.

Are you afraid of your spouse? If so, would you be able to speak up for
yourself in a separate room with a mediator? (Explain shuttle mediation
option.)

9.

Are you still living in the same home with your spouse? If so, do you think
you would feel safe in returning home after discussing the issues in your
case in mediation?

10.

Do you have concerns about going to court?

11.

Do you have any other concerns about safety that you would like us to
know about?
After presenting information about the process of mediation and
discussing the information elicited by these questions, the screener should
ask whether the person needs any further information about the mediation
process in order to decide whether or not s/he is willing to mediate.
C.
Phase Three
1.
Referral to Mediation if Domestic Violence Alleged
After the information in Phase II has been discussed, the party alleging
domestic violence may choose whether or not to proceed with mediation.
If represented, s/he should be encouraged to discuss that decision with
counsel and given an opportunity to do so before a decision is made. No
case involving issues of domestic violence should be sent to mediation
without the consent of the alleged victim given after a thorough
explanation of the process of mediation.

(a)

If the person alleging domestic violence declines mediation, the case will
be released for process through the court system, and the court will simply
be notified that mediation was not appropriate.

(b)

If the alleged victim chooses to proceed with mediation, the case should
be sent to mediation unless the program or the court determines that there
is a compelling reason (such as extreme violence) that this particular case
should not be referred.

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(c)

If the party alleging domestic violence chooses to mediate, the program
must take appropriate steps to ensure that the safeguards set forth in
Section II herein are in place for the mediation session
2.

Safeguards For The Mediation Session
In Cases Involving Issues Of Domestic Violence

1. The program should exercise care to avoid disclosure of the
parties place of residence by either the program staff or the mediator.
2. The mediator conducting the session should have received
special training in dealing with issues of domestic violence in the context
of mediation.
3. The alleged victim should have an attorney or advocate
available for the entire session or sessions. If the alleged victim does not
have an attorney, s/he should be invited to bring an advocate or friend to
the mediation session to be available for consultation and to see him/her
safely to his/her car.
4. Arrangements should be made for the parties to arrive and leave
the mediation session separately.
5. The session itself should be made safe through adequate
security and any other necessary means.
6. Arrangements should be made for the session to be held entirely
in caucus if that is necessary.
7. At the earliest possible point in the mediation the mediator
should explore power dynamics in order to 1) confirm the comfort of each
party with the mediation format and 2) confirm the ability of each party to
bargain for him/herself.
D.

Confidentiality In Screening For Domestic Violence
Program directors and staff conducting screening for domestic
violence should keep information elicited confidential. Information
elicited should not be communicated to the court unless absolutely
necessary. The court should simply be informed that the case is
inappropriate for mediation. Communication of sensitive information to
the court could create a necessity for the judge to recuse him/herself.
Under O.C.G.A § 17-17-9.1, communications between a victim
and victim assistance personnel appointed by a prosecuting attorney and
any notes, memoranda, or other records made by such victim assistance
personnel of such communication are work product of the prosecuting
attorney. These communications are not subject to disclosure except where

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such disclosure is required by law. Such work product shall be subject to
other exceptions that apply to attorney work product generaly.

Appendix A Guidelines for Phase II Screening
I.
Contacting the alleged victim:
If the alleged victim is represented by counsel, consult with her/his attorney
regarding your need to contact the alleged victim to conduct an interview to learn
more about the allegations and to provide information about mediation so that the
alleged victim can make an informed choice about whether to participate in
mediation.
Because you are not making a decision about whether the allegations of domestic
violence are credible, it is better to not contact the alleged perpetrator unless there
are indications of violence on the part of both parties in Phase I. If any contact
with the alleged perpetrator is necessary, exercise great care to avoid disclosure of
any allegations of abuse that do not appear in court pleadings.
If it is necessary to contact the alleged victim by mail, avoid expressing specific
concerns regarding domestic violence in correspondence. If you mail routine
correspondence about the mediation to the parties, do not include the alleged
victim’s address on any correspondence that is sent to anyone other than the
victim.
When you telephone to arrange an interview, take precautions to ensure that the
person is able to speak privately.
During first contact with the alleged victim, explain how the case came to your
attention for further screening and the purpose of the screening, which is to allow
the person to make an informed choice.

a.

II.
Information to be included in the screening interview:
Neutrality: an explanation of the role of the mediator as a neutral person
who will facilitate the discussion between the parties but who will not
coerce or control the outcome; explanation that the mediator will not allow
abusive behavior of which she or he is aware and will have skills in
balancing power, but will not in any way serve as an advocate for the
alleged victim.

b.

Confidentiality: an explanation of confidentiality of the mediation session
and any limitations on the extent of confidentiality;

c.

Termination: an explanation that the mediation can be terminated at any
time by either party or the mediator;

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d.

Legal counsel: an explanation that the alleged victim may bring an
attorney to the mediation or consult her/his attorney by telephone during
the mediation as needed; and an explanation that if s/he does not have an
attorney, s/he may bring another advocate or friend;

e.

Expert advice: an explanation that the mediator will not provide any legal
or financial advice;

f.

Process: an explanation of how mediation is conducted (joint sessions,
caucus, etc.) with an explanation of the option of shuttle mediation;

g.

Good faith: an explanation that parties will be expected to negotiate in
good faith and therefore should be prepared to make full disclosure of
matters material to any agreement reached; but that good faith does not in
any way require parties to enter an agreement about which they have any
reservations;

h.

Effect of agreement: an explanation that a mediated agreement, once
signed, can have a significant effect on the rights of the parties and the
status of the case.

C.
Concerns About the Use of Mediation in Cases Involving
Domestic Violence
The Georgia Coalition Against Domestic Violence and Georgia Commission on
Family Violence take the position that mediation in family violence cases is not
appropriate as it increases the danger for the victim and children. Families in
which violence is present have significant power imbalances, which should be
addressed by the court. Batterers can use the mediation process to continue to
control and victimize survivors.
Despite the risks, family violence victims are being referred to mediation in
Georgia. Mediators who are not trained to screen for family violence and correct
the power imbalances are at risk for presenting mediation plans that increase the
danger for victims and their children. Mediators who are not trained in family
violence will likely not understand the safety needs of victims at home or during
the mediation process. If the victim is encouraged or pressured to disclose
concerns, needs that contradict the batterer’s needs, the victim may face
dangerous consequences as they leave the mediation site, or later at home. For
example, many battered women have learned, through years of violence, to
submit to the batterer’s needs and wants at the expense of their own. If the victim
is unable to focus on her own needs and those of her children, she will be
ineffective in communicating those needs to the mediator. She may also be so
intimidated by the batterer that she feels it is worth giving up needed economic
resources to keep the batterer from becoming enraged. Even if a victim is
successful in communicating her needs, the batterer may recognize he is losing

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control of the victim and seek to maintain that control through increased contact,
intimidation and violence.
Further, it is unrealistic to expect victims of family violence to self-identify, or
prove their eligibility in order to abstain from mediation. Many victims minimize
or deny the violence in their lives to survive. They may be unable to face and
identify the violence as it could undermine those efforts. Additionally, many
victims may be too embarrassed to disclose family violence, particularly in rural
and/or tight-knit communities.
To minimize the danger that mediation can create, at minimum specialized
mediators must be used for cases in which family violence is present. Specialized
mediators must have extensive training on family violence issues and safety
concerns. They should recognize the need to have an advocate involved in the
process for any family violence case that proceeds through mediation. They
should also understand the risks and concerns in family violence cases and have
guidelines for when cases should be referred back to court without mediation.
Victims must be notified that they have the right to withdraw from mediation at
any time. (See Page 6 of this appendix – Informed Consent).
To further safeguard victims and children in these cases, we recommend that
judges review the following issues carefully to minimize the efforts of batterers to
use the court systems to further victimize and harm their family members. The
violence itself and the following safety issues are never to be mediated:
1.
criminal actions;
2.
safe visitation exchange;
3.
supervised visitation;
4.
existing protection orders; and
5.
other contact issues that will allow the batterer to monitor or control the
victim’s movements and actions.
D.
Safeguards for Judicial Consideration in Mediated Agreements
Below is a list of issues for judges to look for in mediated agreements in order to
minimize the adverse affects to families where domestic violence is present and
reduce the number of times the parties return to court. These issues, coupled with
shuttle mediation and the preference for an advocate to be in the room with the
victims, can negate some of the adverse dynamics that can happen in mediation of
domestic violence civil cases.
In general, these orders should be specific and clear with appropriate
timetables for events to happen. Do not leave any issue to be “mutually agreed
upon by the parties”. This requires the parties to negotiate which is simply fertile
ground for conflict and future litigation.
The suggestions outlined herein focus almost entirely on agreements made with
regard to the children. When a batterer is no longer in a position to control the

K:17

victim directly, as when the parties are married, the children become the vehicle
for control. What follows are suggestions about how to ensure that any Order you
approve is effective in separating the children from the control batterers exert as
they attempt to press the limits of the mediated agreement.
1. Custodial Arrangements
a)
Joint Physical Custody.
Successful joint physical custody arrangements require that
the parties have proven, effective communication skills and a
balance of power. Neither exists in relationships where
violence has been an issue. Frequent moves by children between
homes require that parents talk on a regular, sometimes daily basis.
Few decisions can be made without one parent consulting the other
as all decisions affect both households. Families where violence
has occurred and where the parties share joint physical custody
inevitably return to the Court for assistance in settling
disagreements.
b)
Joint Legal Custody.
It’s preferable that the victim/parent be awarded sole legal and
physical custody. Consultation as required by joint legal custody
is fruitless; the parties will never agree on what is in their child’s
best interest, even on the most obvious of issues. The result is
more litigation, with the batterer bringing the victim back to court
alleging he/she has not consulted on all issues. If the parties are
going to be awarded or have agreed on joint legal custody, the
victim must also be awarded final decision making authority.
When batterers are awarded final decision-making authority on any
issue, the decisions are never based on the best interest of the child.
Rather, they make decisions that will have the most impact on the
victim’s life.
2. Visitation Arrangements
a)
Provisions surrounding visitation must be very specific and leave
little to chance. Nothing should be allowed to be “mutually agreed
upon.” Following are questions that need to be answered before an
Order is entered:
(i)
Who is responsible for transportation?
(ii)
Where does drop-off and pick-up take place, specifically?
Which CVS parking lot on Peachtree Street? Which corner
of the parking lot? Public places where people regularly
gather are preferable to either party’s home.
(iii)
How long does the custodial parent have to wait for the
visiting parent before the visitation is deemed cancelled? If
that batterer knows that his/her former spouse has a date on
the same night the children are supposed to be picked up, is
the pick-up going to be timely?

K:18

Who can be present at the transfers? It’s probably not a
good idea for Mom’s new boyfriend or Dad’s new
girlfriend to be there.
b)
Weeknight visitations should be discouraged. These visits
require a lot of coordination, more than the parties are capable of.
Issues surrounding extra-curricular activities, homework and test
preparation, etc., all must be addressed each time one of these
visitations occurs.
c)
If visitation is going to be supervised, it must be clear who’s going
to supervise, who must pay, where it can take place, under what
circumstances supervision may cease and what the process will be
if the arrangements need to change. The supervisor should not be
someone who does not believe the violence ever occurred, e.g. the
batterer’s mother.
3. Telephone Contact
a)
Be realistic about telephone contact. What’s the purpose of calling
a 6-month-old child? Such contact is often used as an opportunity
for an abuser to maintain contact with his/her victim and find out
information otherwise unavailable.
b)
If telephone contact is ordered, there needs to be a window of time
during which the call can occur. For example, the caller must
call between 7:30 and 8:00 p.m. on a specific day of the week.
Requests for daily phone contacts should be evaluated thoroughly
to assure it is not a veiled stalking attempt. If the person being
called has caller identification on the phone, allow the child to
answer the phone, thus minimizing contact between the parties.
c)
Include in the Order that the caller not discuss with the child
anything involving the custodial parent. While hard to enforce,
the victim/parent needs to be able to file a Petition for Citation of
Contempt should it become an issue.
d)
Place the responsibility of calling on the non-custodial parent,
not the child.
4. Financial Issues
a)
If the obligor is employed, have payments made through Income
Deduction Order. This allows for less contact between the parties
and ensures payment as long as the employment status remains the
same. If child support is ordered, alimony payments can be paid
via Income Deduction Order, as well.
b)
DO NOT allow the batterer to be responsible for paying
directly for things that affect the victim’s life (mortgage,
utilities, car payments, etc.). All monies should go directly to the
victim so he/she can be in charge of making necessary payments.
c)
Make sure the parties did not make any agreement that leaves
them connected financially. If one party is awarded the house or
a car, it must be refinanced to remove the other party’s name if
both are on the title or loan. If a Qualified Domestic Relations
(iv)

K:19

Order needs to be prepared, it needs to be clear who prepares it and
by when. If the parties are splitting up debt, make every effort to
ensure the batterer cannot damage the credit of financial status of
the victim by not making payments as required by the Order.

K:20

L.

APPENDIX L - UNIFORM FORMS

A.

Introduction
The Georgia Protective Order Registry (GPOR) was created to serve as a
statewide, centralized database for protective orders. It is managed by the
Georgia Crime Information Center (GCIC) and linked to the National Crime
Information Center (NCIC) Network. Law enforcement, prosecutors, and courts
may access the database 24 hours per day, 7 days per week to assist in the
enforcement of orders and ensure the safety of victims. (O.C.G.A. § 19-13-52)
As part of the registry, O.C.G.A. § 19-13-53 dictates the use of standardized
forms, which are to be promulgated by the Uniform Superior Court Rules. "The
standardized form or forms for protective orders shall be in conformity with the
provisions of this Code, (the Family Violence and Stalking Protective Order
Registry Act, (O.C.G.A. § 19-13-50 et al.) shall be subject to the approval of the
Georgia Crime Information Center and the Georgia Superior Court Clerks'
Cooperative Authority as to form and format, and shall contain, at a minimum, all
information required for entry of protective orders into the registry and the
National Crime Information Center Protection Order File."
For further information about, and to access the GPOR, see Appendix M Georgia Protective Order Registry.

B.

Family Violence Forms
Access the most current Uniform Forms here:
http://www.gsccca.org/filesandforms/sb57forms.asp
The Clerk of each Superior Court is able to provide the uniform forms as well.
Uniform Forms List:
Family Violence Ex Parte Protective Order
Family Violence Six Month Protective Order
Family Violence Twelve Month Protective Order
Family Violence Three Year / Permanent Protective Order
Stalking Ex Parte Temporary Protective Order
Stalking Six Month Protective Order
Stalking Twelve Month Protective Order
Stalking Three Year / Permanent Protective Order
Stalking Permanent Protective Order Pursuant to Criminal Conviction
Dismissal of Temporary Protective Order
Order for Continuance of Hearing and Ex Parte Protective Order
Order to Modify Prior Protective Order

L:1

M.

APPENDIX M – GEORGIA PROTECTIVE ORDER
REGISTRY

Table Of Contents
A.

The Creation of the Georgia Protective Order Registry ......................... M:2

B.

Specific Benefits of GPOR to the Court ................................................. M:2

C.

Other Search Features of the Registry .................................................... M:3

D.

File Retention and Standardized Forms .................................................. M:3

E.

Agencies with GPOR Access.................................................................. M:3

F.

Gaining Access to GPOR Website ......................................................... M:4

G.

For More Information ............................................................................. M:4

M:1

A.

The Creation of the Georgia Protective Order Registry
The Georgia Protective Order Registry (GPOR) was created to serve as a
statewide, centralized database for protective orders. It is managed by the
Georgia Crime Information Center (GCIC) and linked to the National Crime
Information Center (NCIC) Network. Law enforcement, prosecutors, and courts
may access the database 24 hours per day, 7 days per week to assist in the
enforcement of orders and ensure the safety of victims. (OCGA 19-13-52)
Everyone recognizes the inherent danger of domestic violence cases and the
difficulty faced by the court due to the private nature of these acts of family
violence. Add to this a report by the Research Division of the Administrative
Office of the Courts (2005) that indicates 17,600 Georgia protective orders were
litigated pro se in 2004, and the tremendous responsibility placed on the court
becomes clear.
Used together NCIC and Georgia’s Registry provide a comprehensive resource
for the court.

B.

Specific Benefits of GPOR to the Court
There is a general misunderstanding of what is available on GPOR that may
account for the under use of this valuable resource by the court. It is generally
thought that the National Crime Information Center (NCIC) site provides the
same information. This is not the case. There are two main differences that are
important to the court.
The Georgia Protective Order Registry accepts 100% of all orders filed in
Georgia. The Georgia Registry will attempt to transmit all orders to NCIC for
inclusion in the National Protective Order file. Approximately 96% of all orders
received from the Georgia Registry are successfully transmitted to NCIC.
Approximately 3% - 5% are rejected by NCIC due to lack of required information
– information that many petitioners, particularly stalking victims may not have.
Additionally, the original order in its entirety is available on GPOR. The original
order provides detailed information on the respondent, petitioner and the children
that is not available on the NCIC site. Some counties are currently scanning the
petition itself, which includes a narrative of events in the petitioner’s own words,
that led up to the request for protection. Particularly with witnesses in criminal
cases or petitioners in civil cases, who fear going forward with a case, this
information can be very helpful to the court. This percentage may seem small but
with an average of 7,300 active protective orders on the registry, this means that
approximately 350 orders are not showing on NCIC.
Additionally, the original order in its entirety is available on GPOR. The original
order provides detailed information on the respondent, petitioner and the children
that is may not be available on the NCIC site. Some counties are currently
scanning the petition itself, which includes a narrative of events in the petitioner’s
M:2

own words, that led up to the request for protection. Particularly with witnesses
in criminal cases or petitioners in civil cases, who fear going forward with a case,
this information can be very helpful to the court.
The court sometimes receives petitions from the same petitioner that are then
withdrawn or dismissed. This can raise a concern about the use of court resources
but ultimately may indicate the presence of domestic violence. A search of
previous orders may assist the court in identifying petitioners who dismiss orders
out of fear and capitulation to the intimidation tactics of the abuser. (See Section
2.4.3 D. - Repeat Petitioners)
The Georgia Crime Information Center is currently working on re-designing the
POR web site. The goal of the re-design is to enhance the Protective Order
Registry program by improving the accuracy and completeness of records,
enhancing delivery of services, and expanding access to services and records.
C.

Other Search Features of the Registry
1.
Search for orders by civil action file number, county, or respondent
name
2.
View PO conditions; effective, expiration and service dates; respondent
and petitioner information
3.
View or print an image of the order
4.
Run reports by expiration date of order, order type, order status and
county

D.

File Retention and Standardized Forms
Inactive records will be maintained on-line for the remainder of the year in which
the record was cleared or expired, plus five years.
All standardized forms that appear in Appendix L - Uniform Forms of this
benchbook are accepted in the registry. In order for the registry to be most
effective, it behooves the court to use these state promulgated forms. Unfamiliar
forms impact the data entry time and can cause confusion for the law enforcement
officers and deputies charged with enforcing orders across county lines.

E.

Agencies with GPOR Access
1.
Sheriff’s Offices
2.
Police Departments
3.
911 Offices
4.
State, county and private probation offices
5.
Superior and Magistrate courts
6.
District attorney’s offices’
7.
Solicitor’s offices’
8.
Department of Corrections
9.
Department of Pardons and Parole

M:3

F.

Gaining Access to GPOR Website
Judicial access through the Sidebar is not available at this time. While this method
of access is being explored, judicial officers may gain access similar to other
agencies:
1.
Obtain a user ID/password form from GCIC
2.
Fill out form and return to GCIC
3.
GCIC will assign a user ID/password
4.
Confirmation form will be faxed/emailed back to the user

G.

For More Information
Ms. Daryl Beggs at (404) 270-8464 or email: daryl.beggs@gbi.ga.gov
Ms. Mary King at (404) 270-8453 or email: mary.king@gbi.ga.gov

M:4

N.

APPENDIX N – VISITATION, CUSTODY, PROTECTION
AND SUPPORT OF CHILDREN

Table Of Contents
Introduction ......................................................................................................... N:2
A.

Issues for Judicial Consideration in Cases Involving Domestic Violence
................................................................................................................. N:2

1.

Evaluators. .............................................................................................. N:2

2.

Parental Alienation Syndrome. ............................................................... N:2

3.

Custody and Visitation considerations.................................................... N:2

B.

Suggestions for Consideration in Cases Involving Domestic Violence . N:2

1.

Custodial Arrangements.......................................................................... N:3

2.

a)
Joint Physical Custody. ............................................................... N:3
b)
Joint Legal Custody. ................................................................... N:3
Visitation Arrangements ......................................................................... N:3
a)
b)

Questions to be answered before an Order is entered. ................ N:3
Weeknight visitations should be discouraged. ............................ N:4
c)
Child Support Adjustments
……………………………………N:4
3.

Telephone Contact ................................................................................ N:55

4.

Financial Issues ..................................................................................... N:55

C.

Safety Focused Parenting Plan.............................................................. N:67

N:1

Introduction
An American Psychological Association report (1996) notes that custody
and visitation disputes appear to occur more frequently in cases where
there is a history of domestic violence. This reinforces what the domestic
violence community has known for decades. Batterers use the courts to
harass their victims once the victim has left and is out of his immediate
control.
A.

Issues for Judicial Consideration in Cases Involving Domestic Violence
1.
Evaluators.
It may be wise to consider utilizing evaluators - Mental Health
professionals (See Appendix I), Guardians ad Litem (See Appendix J) - or
Court Appointed Special Advocates (CASA) to protect the physical and
psychological well-being of the children. It is crucial to choose a trained
evaluator.
Marjory Fields (2008) reports that “The safety of Intimate Partner
Violence (IPV) victims and their children can be compromised by
evaluators who recommend custody or unsupervised visits for IPV
offenders. Evaluators have a duty to screen all custody and visitation
cases for IPV, as well as child abuse and neglect”
The American Psychological Association’s Report (1996) states “When
children reject their abusive fathers, it is common for the batterer and
others to blame the mother for alienating the children. They often do not
understand the legitimate fears of the child.”
1.21Parental Alienation Syndrome.
“Although there are no data to support the phenomenon called Parental
Alienation Syndrome (PAS), in which mothers are blamed for interfering
with their children's attachment to their fathers, the term is still used by
some evaluators and courts to discount children's fears in hostile and
psychologically abusive situations." (Page 40). Carole S. Bruch (2001)
extensively repudiates the theory of Parental Alienation Syndrome on
multiple counts.
1.22Custody and Visitation considerations.
In general, orders should be specific and clear with appropriate timetables
for events to happen. Do not leave any issue to be “mutually agreed upon
by the parties”. This action requires the parties to negotiate which simply
encourages conflict and future litigation.

B.

Suggestions for Consideration in Cases Involving Domestic Violence
The suggestions outlined herein focus almost entirely on agreements made with
regard to the children. When a batterer is no longer in a position to control the

N:2

victim directly, as when the parties are married, the children become the vehicle
for control. What follows are suggestions about how to ensure that Orders are
effective in separating the children from the control batterers exert as they attempt
to press the limits of the agreement.
1.

Custodial Arrangements
a)
Joint Physical Custody.
Successful joint physical custody arrangements require that the
parties have proven, effective communication skills and a balance
of power. Neither exists in relationships where violence has been
an issue. Frequent moves by children between homes require that
parents talk on a regular, sometimes daily basis. Few decisions
can be made without one parent consulting the other as all
decisions affect both households. Families where violence has
occurred and where the parties share joint physical custody
inevitably return to the Court for assistance in settling
disagreements.
b)
Joint Legal Custody.
It’s preferable that the victim/parent be awarded sole legal and
physical custody. Consultation as required by joint legal custody
is fruitless; the parties will never agree on what is in their child’s
best interest, even on the most obvious of issues. The result is
more litigation, with the batterer bringing the victim back to court
alleging he/she has not consulted on all issues. If the parties are
going to be awarded or have agreed on joint legal custody, the
victim must also be awarded final decision making authority.
When batterers are awarded final decision-making authority on any
issue, the decisions are never based on the best interest of the child.
Rather, they make decisions that will have the most impact on the
victim’s life.
1.23Visitation Arrangements
a)
Questions to be answered before an Order is entered.
Provisions surrounding visitation must be very specific and leave
little to chance. Nothing should be allowed to be “mutually agreed
upon.” Following are questions that need to be answered before an
Order is entered:
(i)
Who is responsible for transportation?
(ii)
Where does drop-off and pick-up take place, specifically?
Which CVS parking lot on Peachtree Street? Which corner
of the parking lot? Public places where people regularly
gather are preferable to either party’s home.
(iii)
How long does the custodial parent have to wait for the
visiting parent before the visitation is deemed cancelled? If
that batterer knows that his/her former spouse has a date on
the same night the children are supposed to be picked up, is
the pick-up going to be timely?

N:3

Who can be present at the transfers? It’s probably not a
good idea for Mom’s new boyfriend or Dad’s new
girlfriend to be there.
b)
Weeknight visitations should be discouraged.
These visits require a lot of coordination, more than the parties are
capable of. Issues surrounding extra-curricular activities,
homework and test preparation, etc., all must be addressed each
time one of these visitations occurs.
(iv)

If visitation is going to be supervised, it must be clear who’s going
to supervise, who must pay, where it can take place, under what
circumstances supervision may cease and what the process will be
if the arrangements need to change. The supervisor should not be
someone who does not believe the violence ever occurred, e.g. the
batterer’s mother.
c)
Child Support Adjustments
O.C.G.A. § 19-6-15 (K) has new guidelines that provide for
adjustments to an amount for child support based a certain number
of visitation days. Under the new guidelines, child support may be
increased if the payor has sixty days of visitation or
less. Conversely, child support may be decreased if the payor has
one hundred days of visitation or more. Section K labeled
“parenting time” states that following:
i. The child support obligation table is based upon
expenditures for a child in intact households.
The court may order or the jury may find by
special interrogatory a deviation from the
presumptive amount of child support when
special circumstances make the presumptive
amount of child support excessive or inadequate
due to extended parenting time as set forth in
the order of visitation or when the child resides
with both parents equally.
ii. If the court or the jury determines that a
parenting time deviation is applicable, then such
deviation shall be included with all other
deviations and be treated as a deduction.
iii. In accordance with subsection (d) of Code
Section 19-11-8, if any action or claim for
parenting time or a parenting time deviation is
brought under this subparagraph, it shall be an
action or claim solely between the custodial
parent and the noncustodial parent, and not any
third parties, including the child support
services.

N:4

In Brown v. Georgia Dept. of Human Resources, 263 Ga. 53, 428 S.E.2d
81 (1993), the court held that, “while a noncustodial parent is not entitled
to credit against child support arrearages for time a child spent living with
him or her as a matter of law, credit may be allowed where the child has
lived with the noncustodial parent, with the express approval of the
custodial parent, where the support provided to the child is within the
spirit and intent of the child support order, or where the custodial parent
agrees to the noncustodial parent's direct support of the child as an
alternative to the payment of child support to the custodial parent. The
court went on to imply, by its holding under the facts of the case, that a
custodial parent's agreement to the noncustodial parent's direct support of
a child need not be overtly stated, but may be found by the court to have
been implied based on the custodial parent's actions, such as leaving the
child with the noncustodial parent for a substantial period of time, failure
to support the child, and failure to demand child support until after
resuming custody of the child”.
1.24Telephone Contact
a)
Be realistic about telephone contact. What’s the purpose of calling
a 6-month-old child? Such contact is often used as an opportunity
for an abuser to maintain contact with his/her victim and find out
information otherwise unavailable.
b)
If telephone contact is ordered, there needs to be a window of time
during which the call can occur. For example, the caller must call
between 7:30 and 8:00 p.m. on a specific day of the week.
Requests for daily phone contacts should be evaluated thoroughly
to ensure it is not a veiled stalking attempt. If the person being
called has caller identification on the phone, allow the child to
answer the phone, thus minimizing contact between the parties.
c)
Include in the Order that the caller not discuss with the child
anything involving the custodial parent. While difficult to enforce,
the victim/parent needs to be able to file a Petition for Citation of
Contempt should the call violate the order.
d)
Place the responsibility of calling on the non-custodial parent, not
the child.
1.25Financial Issues
1 25 Ensure that child support is to be paid through Income
Deduction Orders or through Division of Child Support Services. Judges
should avoid direct payments of child support to ensure the victim’s safety by
limiting any additional contact that the victim may have to have with the abuser.
Georgia state law requires immediate income withholding in most cases, though
there is an exception for good cause or for a written agreement reached between
the parties that provides for an alternative payment arrangement. O.C.G.A. 19-632(a)(1) (2012). Even when an offender purports to show good cause or when
there is a written agreement between the parties, if there is domestic violence
involved, the court should avoid issuing an order that allows contact between the
parties. By requiring child support to be paid via Income Deduction or through the

N:5

Division of Child Support Services, the payor is distanced from the receiver. This
eliminates the need for the victim to reveal his or her address to obtain support,
and eliminates any excuse that the abuser may have for contacting the victim or
avoiding payment.
2 25 Take steps to avoid requiring victims to interact with abusers.
The victim should never be expected to meet with the abuser and should not be
required to appear in person if he or she fears for his or her life. Efforts should be
taken to avoid requiring victims to go with their abusers to file additional petitions
or complete additional paperwork. When possible, if additional paperwork is
necessary, it should be completed by clerical staff and parties should be kept
separate.
3 25 DO NOT allow the batterer to be responsible for paying directly
for things, such as services or bills, that affect the victim’s life (mortgage,
utilities, car payments, etc.). All monies should go directly to the victim so he/she
can be in charge of making necessary payments.
4 25 Make sure the parties did not make any agreement that leaves
them connected financially. If one party is awarded the house or a car, it must
be refinanced to remove the other party’s name if both are on the title or loan. If a
Qualified Domestic Relations Order needs to be prepared, it needs to be clear who
prepares it and by what date it will be completed. If the parties are splitting up
debt, make every effort to ensure the batterer cannot damage the credit or
financial status of the victim by not making payments as required by the Order.
5 25 The court should draft detailed orders and child support
schedules. When a court orders child support, the order should set a detailed
payment schedule and guidelines. This sets limits on an offender, and removes
any discretion that he might otherwise have to exercise some kind of control over
the victim.
6 25 If necessary, forego child support to ensure victim safety. Though
in many cases, with the proper care, child support can be ordered safety, in other
cases, the danger to the victim may be too great. In instances where a child
support order is likely to compromise the safety of the victim, it is better to
postpone ordering child support until a time when the likelihood of danger has
been reduced.
1....()()--Good Cause exception to Child Support. Federal law permits victims who would
otherwise be required to seek child support, specifically victims receiving money through
the Temporary Assistance to Needy Families (TANF) program, to avoid seeking child
support if they can show “good cause.” If good cause is shown, then the victim will not
be required to provide information about the father and AGENCY will not contact him to
seek child support.
C.

Safety Focused Parenting Plan.

N:6

__________________COUNTY SUPERIOR COURT
STATE OF GEORGIA

_____________________________,
)
Plaintiff,
)
Civil Action
)
Case Number ________________
)
)
_____________________________,
)
Defendant.
)

PARENTING PLAN

( ) The parties have agreed to the terms of this plan and this information
has been furnished by both parties to meet the requirements of OCGA
Section 19-9-1. The parties agree on the terms of the plan and affirm the
accuracy of the information provided, as shown by their signatures at the
end of this order.
( ) This plan has been prepared by the judge.
This plan
( ) is a new plan.
( ) modifies an existing Parenting Plan dated ___________.
( ) modifies an existing Order dated __________________.
Child’s Name

Date of Birth

I. Custody and Decision Making:
A. Legal Custody shall be (choose one:)
( ) with the Mother
( ) with the Father
( ) Joint
B. Primary Physical Custodian

N:7

For each of the children named below the primary physical
custodian shall be:

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WHERE JOINT PHYSICAL CUSTODY IS CHOSEN BY THE PARENTS
OR ORDERED BY THE COURT, A DETAILED PLAN OF THE LIVING
ARRANGEMENTS OF THE CHILD(REN) SHALL BE ATTACHED AND
MADE A PART OF THIS PARENTING PLAN.
C. Day-To-Day Decisions

N:8

Each parent shall make decisions regarding the day-to-day care of a child while
the child is residing with that parent, including any emergency decisions affecting
the health or safety of a child.

D. Major Decisions
Major decisions regarding each child shall be made as follows:
Educational
decisions

Nonemergency
health care

Religious
upbringing

Extracurricular
activities

___________
__________

(
)
m
o
t
h
e
r

(
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m
o
t
h
e
r

(
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f
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j
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)

)

f
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r
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j
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f
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r
(

j
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N:9

m
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___________
__________

(
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j
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E. Disagreements
Where parents have elected joint decision making in Section I.D above, please
explain how any disagreements in decision-making will be resolved.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

II. Parenting Time/Visitation Schedules
A. Restrictions (Check if applicable)
( ) The non-custodial parent shall begin attending FVIP
(Family Violence Intervention Program) and shall provide
proof of compliance to this court.
( ) The non custodial parent shall attend parenting classes
before visitation can begin and shall provide proof of
compliance to this court.
( ) The non custodial parent shall attend alcohol / drug abuse
/mental health counseling before visitation can begin
and shall provide proof of compliance to this court.
B. Restrictions (Check if applicable)
( ) 1. No Parenting Time

N:10

(

The non-custodial parent shall have no contact with the
children until further court order. All parenting decisions
shall be made by the residential parent.
( ) 2. Supervised Parenting Time
Whenever parenting time is exercised by the non-custodial
parent as outlined below, including day-to-day visitation and
holiday or vacation visitation, it shall be conducted with a
supervisor present. Supervised parenting time shall apply
during the day-to-day schedule as follows:
Place: _______________________________________________
Person/Organization supervising:
____________________________________________________
Instructions for supervision: (i.e.: child cannot be removed
from supervisor’s home, drug/alcohol restrictions)
____________________________________________________
____________________________________________________
____________________________________________________
Responsibility for cost
( ) mother
( ) father

( ) divided equally

C. Visitation Schedule
During the term of this parenting plan the non-custodial parent shall have at a
minimum the following rights of parenting time/ visitation (choose an item):
( ) The weekend of the first and third Friday of each month.
( ) The weekend of the first, third, and fifth Friday of each month.
( ) The weekend of the second and fourth Friday of each month.
( ) Every other weekend starting on __________.
( ) Each _________ starting at _________a.m./p.m. and ending
__________ a.m./p.m.
( ) Other: ______________________________________________________

For purposes of this parenting plan, a weekend will start at ______ a.m./p.m. on
[Thursday / Friday / Saturday / Other: _____________ ] and end at _______
a.m./p.m. on [Sunday / Monday / Other: _________________ ].
Any weekday visitation will begin at _____ a.m./p.m. and will end [___p.m. /
when the child(ren) return(s) to school or day care the next morning /
Other:________ ].

N:11

This parenting schedule begins:
( ) ____________________ OR
(day and time)

( ) date of the Court’s Order

D. Major Holidays and Vacation Periods
1. Thanksgiving
The day to day schedule shall apply unless other arrangements are set forth:
________________________________________________________________
________________________________________________________________
____________________________ beginning _____________________.
2. Winter Vacation
The day to day schedule shall apply except as follows (check if appropriate):
( ) The non-custodial parent shall have the child(ren) beginning on
__________________ at ____m. and ending on ____________________ at
____m.
( )The ( ) mother ( ) father shall have the child(ren) for the first period from the
day and time school is dismissed until December ______ at __________
a.m./p.m. in ( ) odd numbered years ( ) even numbered years ( ) every year. The
other parent will have the child(ren) for the second period from the day and time
indicated above until 6:00 p.m. on the evening before school resumes. Unless
otherwise indicated, the parties shall alternate the first and second periods each
year.
( ) Other agreement of the parents:
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________.
3. Summer Vacation
Define summer vacation period:
_______________________________________________
The day to day schedule shall apply unless other arrangements are set forth:
________________________________________________________________
________________________________________________________________
_______________________________ beginning _____________________.
4. Spring Vacation (if applicable)

N:12

Define:___________________________________________________________
The day to day schedule shall apply unless other arrangements are set forth:
________________________________________________________________
________________________________________________________________
_______________________________ beginning _____________________.
5. Fall Vacation (if applicable)
Define:___________________________________________________________
The day to day schedule shall apply unless other arrangements are set forth:
________________________________________________________________
________________________________________________________________
____________________________ beginning _____________________.
6. Other Holiday Schedule (if applicable)
Indicate if child(ren) will be with the parent in ODD or EVEN numbered years or
indicate EVERY year:

Martin
Luther King
Day
Presidents’
Day
Mother’s
Day
Memorial
Day
Father’s
Day
July Fourth
Labor Day
Halloween
Child(ren)’s
Birthday(s)
Mother’s
Birthday
Father’s
Birthday
Religious
Holidays:
_________
_______

MOTHER
__________
_______

FATHER
___________
_______

__________
_______
__________
_______
__________
_______
__________
_______
__________
_______
__________
_______
__________
_______

___________
_______
___________
_______
___________
_______
___________
_______
___________
_______
___________
_______
___________
_______

__________
_______
__________
_______
__________
_______

___________
_______
___________
_______
___________
_______

N:13

_________
_______
_________
_______
_________
_______
Other:
_________
_______

Other:
_________
_______
Other:
_________
_______

__________
_______
__________
_______
__________
_______
__________
_______
__________
_______

___________
_______
___________
_______
___________
_______
___________
_______
___________
_______

__________
_______

___________
_______

__________
_______

___________
_______

7. Other extended periods of time during school, etc. (refer to the school
schedule)
____________________________________________________
____________
____________________________________________________
____________
____________________________________________________
____________
D. Start and end dates for holiday visitation
For the purposes of this parenting plan, the holiday will start and end as follows
(choose one):
( ) Holidays shall start at ___ a.m. on the day of the holiday.
( ) Holidays shall end at ___ p.m. on the day of the holiday.
( ) Holidays that fall on Friday will include the following Saturday and Sunday
( ) Holidays that fall on Monday will include the preceding Saturday and Sunday
( ) Other: _______________________________________________________
E. Coordination of Parenting Schedules
Check if applicable:
()
The holiday parenting time/visitation schedule takes precedence over the
regular parenting time/visitation schedule.

N:14

()
When the child(ren) is/are with a parent for an extended parenting
time/visitation period (such as summer), the other parent shall be entitled to visit
with the child(ren) during the extended period, as follows:
________________________________________________________________________
________________________________________________________________________

F. Transportation Arrangements
For visitation, the place of meeting for the exchange of the child(ren) shall be:
________________________________________________________________
________________________________________________________________
The ___________ will be responsible for transportation of the child at the
beginning of visitation.
The ___________ will be responsible for transportation of the child at the
conclusion of visitation.
Transportation costs, if any, will be allocated as follows:
________________________________________________________
________________________________________________________
Other provisions: __________________________________________
G. Contacting the child
When the child or children are in the physical custody of one parent, the other
parent will have the right to contact the child or children as follows:
( ) Telephone
( ) Other:________________________________________________________
_______________________________________________________________
( ) Limitations on contact
________________________________________________________________
________________________________________________________________
( ) The ( ) mother ( ) father shall pay for a cell phone for the child(ren) and shall
contact the child(ren) only at that number during the times identified above. The
parents shall not contact each other directly except when urgent circumstances
require it.
H. Communication Provisions
Please check appropriate provision:
( ) Each parent shall promptly notify the other parent of a change of address,
phone number or cell phone number. A parent changing residence must give at

N:15

least 30 days notice of the change and provide the full address of the new
residence.
( ) Due to prior acts of family violence, the address of the child(ren) and victim of
family violence shall be kept confidential. The protected parent shall promptly
notify the other parent, through a third party, of any change in contact information
necessary to conduct visitation.

III.

Access to Records and Information
Rights of the Parents
Absent agreement to limitations or court ordered limitations, pursuant to
O.C.G.A. § 19-9-1 (b) (1) (D), both parents are entitled to access to all of the
child(ren)’s records and information, including, but not limited to, education,
health, extracurricular activities, and religious communications. Designation as a
non-custodial parent does not affect a parent’s right to equal access to these
records.
Limitations on access rights:
( ) Access to the child(ren)’s records and information outlined above poses a
potential safety concern for the child(ren) or parent; therefore, access to such
documents is restricted as follows:
________________________________________________________________
________________________________________________________________
________________________________________________________________
Other Information Sharing Provisions:
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
IV. Modification of Plan or Disagreements
Parties may, by mutual agreement, vary the parenting time/visitation;
however, such agreement shall not be a binding court order. Custody
shall only be modified by court order. No parent may coerce, intimidate,
threaten, or harm the other parent to secure an agreement to changes in
this parenting plan.
V. Child Safety
The parents shall follow the safety rules checked below (check all rules
that apply):
( ) The following person(s) present a danger to the child(ren) and shall not
be present during parenting
time:__________________________________________________

N:16

( ) The child(ren) shall not be physically disciplined.
( ) There shall be no firearms in the parent’s home, car, or in the
child(ren)’s presence during parenting time.
( ) Neither party shall consume alcohol or illegal drugs and then operate
a motor vehicle when the child(ren) is/are in his or her custody.
( ) Neither parent shall be intoxicated or under the influence of any
controlled substance (e.g. illegal or non-prescribed drugs) during the
period of time that s/he is with the child(ren).
( ) The child(ren) shall not be left alone until they reach at least ___ years
of age.
( ) Other:
__________________________________________________________
____
__________________________________________________________
____________
VI. Special Considerations
Please attach an addendum detailing any special circumstances of which
the Court should be aware (e.g., health issues, educational issues, etc.)
( ) There has been family violence by the _____________ against the
______________
and the safety of the victim and the child(ren) shall be the primary focus
of interactions between the abuser, the victim, and the child(ren).
O.C.G.A. Sec. 19-9-3(4).
()
____________________________________________________
____________
____________________________________________________
____________
VII. Parents’ Consent
Please review the following and initial:
1. We recognize that a close and continuing parent-child relationship and continuity
in the child’s life is in the child’s best interest. when the parents have shown
that they can act in the best interest of the child.
Mother’s Initials: ___________ Father’s Initials: ____________

N:17

Reason for not signing:
( ) There has been domestic violence by the ___________against the ___________
and/or minor child(ren) and a close and continuing parent-child relationship or
continuity in the child(ren)’s life is not in the child(ren)’s best interest. O.C.G.A. §199-3(a)(4).
2. We recognize that our child’s needs will change and grow as the child matures;
we have made a good faith effort to take these changing needs into account so
that the need for future modifications to the parenting plan are minimized.
Mother’s Initials: ____________ Father’s Initials: ____________
3. We recognize that the parent with physical custody will make the day-to-day
decisions and emergency decisions while the child is residing with such parent.
Mother’s Initials: __________

Father’s Initials: _____________

( ) We knowingly and voluntarily agree on the terms of this Parenting Plan. Each of
us affirms that the information we have provided in this Plan is true and correct.

______________________________
_______________________________
Father’s Signature
Mother’s Signature

ORDER
The Court has reviewed the foregoing Parenting Plan, and it is hereby
made the order of this Court.
This Order entered on _____________________________________, 20
_____ .

____________________________________
JUDGE
___________ COUNTY SUPERIOR COURT

N:18

O.

APPENDIX O – CHILDREN AND DOMESTIC
VIOLENCE

Table Of Contents
Introduction ......................................................................................................... O:2
A.

Effects of Domestic Violence on Children ............................................. O:3

1.

Factors that influence child response to exposure to domestic
violence. .................................................................................................. O:3

2.

Effects of exposure to domestic violence. .............................................. O:3

3.

Impact of witnessing arguments or domestic violence. .......................... O:4

4.

Effects of domestic violence based on gender. ....................................... O:4

5.

Impact of violence on family units. ........................................................ O:5

6.

Correlation between witnessing domestic violence and
maltreatment or abuse of children........................................................... O:5

B.

Termination of Parental Rights ............................................................... O:6

C.

Best Practices .......................................................................................... O:6

O:1

Introduction
Children often are involved in cases of domestic violence that come before
the court. It may be instinctive to assume that children would be severely
and negatively impacted by remaining in a home where domestic violence
has occurred, or by remaining with a parent who was a victim of domestic
violence. However, it would be counterproductive and sometimes harmful
to the children to assume that the negative impacts of witnessing domestic
violence outweigh the negative impacts of removal. In situations where
children are involved, regardless of whether or not they actually witnessed
the violence, the court should consider the context of the situation and a
number of variables that can help assess what types of assistance are in the
children’s best interest.
A New York District Court decision, Nicholson v. Williams (203 F. Supp.
2d 153, 2002), included a number of variables and findings by various
experts on the impact of domestic violence on children, and on
determining whether removal from the home is in the best interest of the
child. The experts emphasized that there is a great deal of variability in
the effects of domestic violence on children, and though children can be
negatively impacted by witnessing such violence (including post-traumatic
stress disorder, sleep disturbances, separation anxiety, more aggressive
behavior, passivity or withdrawal, greater distractibility, concentration
problems, hypervigilance, desensitization to other violent events,
propensity to use violence in future relationships, propensity to hold a
pessimistic view of the world, increased risk for depression and anxiety
and disruptive behavior disorders, issues with compliance with authority,
higher level of aggression, and higher rate of academic difficulties), such
an impact is by no means certain and depends on a number of factors.
Collectively, the experts suggest in order to assess the impact of domestic
violence, one should examine: the level of violence in families; degree of
child’s exposure to the violence; child’s exposure to other stressors;
child’s individual coping skills, age, frequency and content of what the
child saw or heard; the child’s proximity to the event, the victim’s
relationship to the child; and the presence of a parent or caregiver to
mediate the intensity of the event.
Further, experts emphasized that in some cases, children experienced no
negative effects or impact from having witnessed domestic violence. They
also noted that domestic violence against a mother does not necessarily
result in violence against the child; however, if such violence did occur,
the perpetrator of the violence would be the same in both situations. The
experts found it extremely unlikely that a victim of domestic violence
would then perpetrate violence on his or her child.

O:2

The court should remove children from the home after witnessing
domestic violence only as a last resort. Children most benefit from having
a mature, nurturing and caring relationship with an adult who can be a
parent, teacher or a therapist, from being able to talk about what they’ve
witnessed, and from having a safe environment. Judges should consider
other resources, such as Children 1st (which serves as a single point of
entry for public health-based programs and services for at-risk children) as
part of case plans for children exposed to violence. Not every child needs
or benefits from the same intervention, and help should be gender and age
specific.
A.

Effects of Domestic Violence on Children
There is a great deal of variability on children’s experience and the impact
of those experiences. Several factors have been identified that influence
children’s responses to being exposed to domestic violence (Nicholson v.
Williams, 203 F. Supp. 2d 153 (2002).
1.
Factors that influence child response to exposure to domestic violence.
Level of violence in families;
Degree of child’s exposure to the violence;
Child’s exposure to other stressors;
Child’s individual coping skills;
Child’s age;
Frequency and content of what the child saw or heard;
Child’s proximity to the event;
Victim’s relationship to the child; and
Presence of a parent or caregiver to mediate the intensity of the event.
1.26Effects of exposure to domestic violence.
The effects of exposure to domestic violence can manifest in several
different ways. The experts who testified in Nicholson v. Williams,
regarding the effects on children witnessing domestic violence, identified
short-term, long-term, and other effects.
Short-term effects can include:
Post-traumatic stress disorder;
Sleep disturbances;
Separation anxiety;
More aggressive behavior;
Passivity or withdrawal;
Greater distractibility;
Concentration problems;
Hypervigilance; and
Desensitization to other violent events.
Long-term effects
Propensity to use violence in future relationships;
Propensity to hold a pessimistic view of the world; and
May not occur when a child has a period of safety after

O:3

watching domestic violence.
Other effects
Increased risk for depression and anxiety and disruptive
behavior disorders;
Issues complying with authority;
Higher level of aggression; and
Higher rate of academic difficulties.

1.27Impact of witnessing arguments or domestic violence.
Betsy McAlister-Groves, in her book Children Who See Too Much, more
generally studied the impact of witnessing arguments, or domestic
violence, on children (McAlister-Groves, Betsy. Children Who See Too
Much. Boston: Beacon Press, 2002. Print.)
Children who witnessed arguments in the home as infants showed
reactions of distress when exposed to “background anger,” such as their
parents arguing or yelling (McAlister-Groves 56). When older, children
are likely to try to distract, comfort, or problem solve for arguing parents
(McAlister-Groves 56). When parents resolve arguments, children are
much less likely to be affected (McAlister-Groves 57).
Witnessing physical aggression between their parents is more harmful to
children than witnessing verbal aggression (McAlister-Groves 57).
Exposure to domestic violence affects children’s emotional
development, social functioning, ability to learn and focus in school,
moral development and ability to negotiate intimate relationships as
adolescents and adults. Witnessing domestic violence is also associated
with greater rates of juvenile delinquency, antisocial behavior, substance
abuse, and mental illness (McAlister-Groves 57-58).
1.28Effects of domestic violence based on gender.
Richard Gelles studied the effects of domestic violence on children by
comparing children, based on gender, who experienced violence with
those who witnessed violence. Generally, children who experienced or
were exposed to more violence at home and children who had only
experienced violence had more problems than those who were only
exposed to violence or who were neither exposed nor experienced family
violence (Gelles, Richard. “Partner Violence and Children.” From
Ideology to Inclusion 2009: New Directions in Domestic Violence
Research and Intervention. California Alliance for Families and Children.
The LAX Marriott, Los Angeles, CA. 26 June 2009. Plenary.)
School Troubles
Boys who experienced violence had more problems than boys who
were exposed to violence, or who were exposed to and
experienced violence.

O:4

Girls who experienced and were exposed to violence had more
problems than girls who either only experienced violence
or were only exposed to violence.
Delinquency
Experience or exposure to violence made no difference in
children’s delinquency.
Problems with Adults
Boys who experienced violence only had more problems than boys
who were exposed to violence, or both experienced and
were exposed to violence.
Girls who experienced and were exposed to violence had more
problems than girls who either experienced only or were
exposed only to violence.
Physical Aggression
Boys who experienced or were exposed to violence are more likely
to develop physical aggression than girls who experienced
or were exposed to violence.
1.29Impact of violence on family units.
Jodi Klugman-Rabb studied the impact of violence on family units as a
whole. Generally, violence increases risk of self-destructive behaviors
(such as gang involvement, self-mutilation, substance abuse, inability to
manage emotions and impulses, sexual promiscuity, cutting school, and
future violence). She also found that children living in violence are more
likely to have developmental delays or cognitive and language problems.
She also found that violence had indirect effects on families. (KlugmanRabb, Jodi. “Working with Parents and Families: The Effects of Domestic
Violence on Family Systems.” From Ideology to Inclusion 2009: New
Directions in Domestic Violence Research and Intervention. California
Alliance for Families and Children. The LAX Marriott, Los Angeles, CA.
26 June 2009. Plenary.)
Indirect effects of violence
Harsh parenting;
Inconsistent parenting/discipline/reinforcement;
Insecure attachment styles; and
Increased clinical-level anxiety and depression overall.
1.30Correlation between witnessing domestic violence and maltreatment or
abuse of children
There is some correlation between the presence of domestic violence in a
household and direct maltreatment of children. Abuse tends to
flow from the batterer. Generally, the victim of abuse does not
then abuse his or her children; a scenario in which a man hits his
wife, and she hits the child, is rare (Nicholson 203 F. Supp. 2d at
198). In those cases in which the victim of domestic violence
abuses his or her children and are then prosecuted for battery and

O:5

assault against the children, Georgia courts have allowed those
victims to admit evidence of battered person syndrome to show a
lack of the requisite intent (Pickle v. State, 280 Ga. App. 821
(2006).
Witnessing domestic violence, itself, does not constitute maltreatment.
Many children who witness domestic violence show no negative
effects, and some show strong coping abilities (Nicholson 203 F.
Supp. 2d at 198).
B.

Termination of Parental Rights
Georgia courts have terminated parental rights of both the batterer and the victim,
in the right circumstances. In the Interest of D.O.R., the court terminated the
parental rights of the batterer and the victim, where the victim suffered from
depression, was unwilling to take a drug test, and failed to meet with a domestic
violence assessor among other things. The victim’s failure to comply with
previous court orders and case plans was reason to find that giving her parental
rights would harm the child (287 Ga. App. 659 (2007)

C.

Best Practices
Judges should do a careful assessment of risks and protective factors in every
family before drawing conclusions about the risks and harm to children
(Nicholson 203 F. Supp. 2d at 198).
Child protection services and courts should avoid strategies that blame the nonabusive parent for failure to protect because of the system’s inability to
hold the actual perpetrator of the violence accountable (Nicholson 203 F.
Supp. 2d at 200).
Children should be protected by offering battered parents appropriate services and
protection (Nicholson 203 F. Supp. 2d at 202). This could include
referring the victim to a local domestic violence center or shelter, or
referring to the public health program, Children 1st. The form and further
information are found at http://health.state.ga.us/programs/childrenfirst/
Children who witness violence may need professional psychotherapeutic help
depending on changes in behavior and how long they have been occurring,
the severity of the violence witnessed, and whether there is ongoing risk to
the child, or the parent is unable to care for the child adequately
(McAlister-Groves 86-87). Children are best helped by three elements: a
nurturing, respectful, and caring relationship with an adult; giving children
permission to talk, to tell their stories about what they have seen; and
creating a safe environment for children who have witnessed violence
(McAlister-Groves 101, 103).

O:6

P.

APPENDIX P – CYBERSTALKING AND DIGITAL
ABUSE

Table Of Contents
Introduction .......................................................................................................... P:2
A.

Cyber Crimes ............................................................................................... P:3

1.

Technologies ............................................................................................ P:3

2.

Cyberstalking ........................................................................................... P:3

3.

Cyber Harassment .................................................................................... P:4

4.

Cyberbullying .......................................................................................... P:4

B.

Georgia Stalking Law.................................................................................. P:4

1.

Constitutionality of GA Stalking Law ..................................................... P:4

2.

GA Senate “Revenge Porn” Bill .............................................................. P:4

3.

Definition of Stalking .............................................................................. P:5

C.

Use of Technology to Stalk .......................................................................... P:5

1.

Forms of Computer and Electronic-Based Harassment ........................... P:5

D. Application of Stalking Laws in Cyberstalking cases .................................. P:6
1.

The Federal Interstate Stalking Punishment and Prevention Act ............ P:6

2.

Interpretation of Stalking Laws to Include Cyberstalking ....................... P:6

E.

Venue in Cyberstalking ................................................................................ P:7

F.

Internet Resources ........................................................................................ P:8

P:1

Introduction
Digital abuse is the use of technologies such as e-mailing, texting,
and social networking to bully, harass, stalk or intimidate a partner.
The means by which perpetrators can use the Internet and
electronics to interact with victims has only grown since then. Aside from
increasing numbers ways to perpetrate cyberstalking, the instances of
cyber harassment and cyber bullying have grown in number and attention.
Technology advances rapidly, and so does stalkers’ means of
controlling, harassing, watching, and contacting their victims. New
technologies and electronic communications, such as GPS locators,
untraceable phones, tiny hand-held video cameras, and online social
networking sites such as Facebook, Twitter, Instagram and Snapchat, all
allow perpetrators to have an unprecedented amount of access to
information about their victims, as well as giving them a means by which
they can perpetrate harassment easily, quickly, and at a distance.
A 1999 Department of Justice report defined cyberstalking as the
use of the e-mail or other electronic communications devices to stalk
another person. O.C.G.A. § 16-5-90 defines stalking as occurring when a
person “follows, places under surveillance, or contacts another person at
or about a place or places without the consent of the other person for the
purpose of harassing and intimidating the other person.” Harassing is
further defined as “a knowing or willful course of conduct directed at a
specific person which causes emotional distress by placing such person in
reasonable fear…by establishing a pattern of harassing and intimidating
behavior.” Contact includes communication by computer, by computer
network, or by other electronic device. It is classified as a misdemeanor,
but upon the second and subsequent convictions, is classified as a felony.
The Violence Against Women Act also provides, under 42 U.S.C.S. §
14043b, grants to, among other things, develop safe uses of technology, to
protect against abuses of technology, or providing training for law
enforcement on high tech electronic crimes of domestic violence, dating
violence, sexual assault and stalking.
As with offline stalkers, digital abusers are motivated by a desire to
exert control over their victims. Evidence suggests that the majority of
cyberstalkers are men, and the majority of their victims are women.
Though cyberstalking does not involve physical contact, it is not
necessarily more benign than offline stalking. The Internet provides
increased access to personal information, and ease of communication, to
potential stalkers. Digital abuse can also foreshadow more serious
behavior, such as physical violence. (Stalking and Domestic Violence:
Report to Congress, 2001).

P:2

Technology advances rapidly, and so does perpetrators’ means of
controlling, harassing, watching, and contacting their victims. New
technologies and electronic communications, such as GPS locators,
untraceable phones, tiny hand-held video cameras, and online social
networking sites such as Facebook and My Space, all allow perpetrators to
have an unprecedented amount of access to information about their
victims, as well as giving them a means by which they can perpetrate
harassment easily, quickly, and at a distance.
The National Network to End Domestic Violence instituted the
Safety Net project to educate victims, advocates and the general public to
find safety using technology. The project also trains law enforcement,
social services and community response teams to hold perpetrators
accountable when using technology to harass, stalk, use surveillance and
threaten.
When domestic violence cases or temporary protection order
petitions involving cyberstalking or cyber harassment appear, it is
important to take digital abuse seriously, even though the stalking may be
conducted at a distance. In cases where the technology was recently
developed, or is unknown to the court, it is also important to take
advantage of the many online and organizational resources available to
explain cyberstalking tools. The Court can include language in temporary
protection orders addressing cyberstalking and cyber harassment to
prevent electronic communication, harassment, threats and stalking.

A.

Cyber Crimes
1.
Technologies
Technology is constantly evolving, and continually gives perpetrators new
means to harass, stalk, and/or bully their victims. More and more people
carry smartphones, laptop computers, and have access to social media
sites. Perpetrators can review victims’ text messages, incoming and
outgoing calls or e-mails, listen to voicemails, or view photos or videos
taken on the electronic device. Technology also allows perpetrators to
share that information with another individual or to share with the general
public. Videos and photos can “go viral” or reach thousands of users – if
the information is private, the threat of public consumption may be a
means of control over victims (Hazelwood 2013).
1.31Cyberstalking
Cyberstalking is generally defined as the repeated pursuit of an individual
using electronic or Internet-capable devices. The pursuit occurs via
unwanted electronic communications, and may be threatening, coercive,

P:3

or intimidating (Hazelwood 2013). Cyberstalking provides an easy and
low-cost means of stalking, regardless of geography or location. A
perpetrator can track, locate, and communicate with a victim from a
computer hundreds of miles away (Shimizu 2013).
1.32Cyber Harassment
Cyber Harassment is generally defined as “an act or behavior that
torments, annoys, terrorizes, offends, or threatens an individual via email,
instant messages, or other means with the intention of harming that person
(Hazelwood 2013). With the increasing availability of communication and
social media sites, that behavior can take place via immeasurable means,
including text message, voicemail, or on Facebook, Twitter, or Instagram.
1.33Cyberbullying
Cyberbullying is bullying that takes place using electronic technology,
including: cell phones, computers, tablets, social media sites, and text
messages (Department of Health and Human Services 2013). This kind of
behavior has become increasingly prevalent as the use of electronic
communication and opportunities for electronic use grows. According to
the Cyberbullying Research Center, 20% of students reported
experiencing cyberbullying in their lifetimes.
B.

Georgia Stalking Law
1.
Constitutionality of GA Stalking Law
Georgia’s stalking law uses broad language that can be interpreted to
cover technology, both current and future. Subject to a case-by-case
interpretation by the court, the language allows the state to argue that any
conduct, electronic or otherwise, with the purpose of harassing or
intimidating another person, is stalking; and includes, but does not limit,
the meaning of “contact” to electronic communications. Though overbroad statutory language can lead to challenges of the law’s
constitutionality, Georgia’s stalking law has been found constitutional, by
Johnson v. State, 264 Ga. 590 (1994), and was found not to be vague or
overbroad.
1.34HB 838 “Revenge Porn” Bill
On April 15, 2014, Governor Deal signed House Bill 838, which
criminalizes “revenge porn.” Revenge porn is also known as nonconsensual pornography, which is the distribution of sexually graphic
images of individuals without their consent. Victims of revenge porn have
been threatened with sexual assault, stalked, harassed, or lost their jobs.
The use of non-consensual pornography can be a form of control in a
domestic violence situation – a victim of domestic violence may be
compelled to stay in the relationship or avoid reporting abuse due to the
threat to expose explicit photographs or videos. Non-consensual
pornography is a form of sexual abuse and an invasion of privacy.
Arizona, Colorado, Maryland, Utah, Virginia and Wisconsin also passed
bills in 2014, and—along with Georgia—join Alaska, California, Idaho,

P:4

New Jersey and Texas as states with “revenge porn” laws. Numerous other
states have revenge porn bills pending in their legislatures.
1.35Definition of Stalking
Georgia defines stalking, in O.C.G.A. §16-5-90(a)(1) as: A person
commits the offense of stalking when he or she follows, places under
surveillance, or contacts another person at or about a place or places
without the consent of the other person for the purpose of harassing and
intimidating the other person. For the purpose of this article, the terms
"computer" and "computer network" shall have the same meanings as set
out in Code Section 16-9-92; the term "contact" shall mean any
communication including without being limited to communication in
person, by telephone, by mail, by broadcast, by computer, by computer
network, or by any other electronic device; and the place or places that
contact by telephone, mail, broadcast, computer, computer network, or any
other electronic device is deemed to occur shall be the place or places
where such communication is received. For the purpose of this article, the
term "place or places" shall include any public or private property
occupied by the victim other than the residence of the defendant. For the
purposes of this article, the term "harassing and intimidating" means a
knowing and willful course of conduct directed at a specific person which
causes emotional distress by placing such person in reasonable fear for
such person's safety or the safety of a member of his or her immediate
family, by establishing a pattern of harassing and intimidating behavior,
and which serves no legitimate purpose. This Code section shall not be
construed to require that an overt threat of death or bodily injury has been
made.

C.

Use of Technology to Stalk
1.
Forms of Computer and Electronic-Based Harassment
The Internet allows stalkers to access personal information about their
victims easily, quickly and from the privacy of their own homes. The
means by which a stalker or harasser can communicate with his or her
victim is continuously evolving; as new social media and electronic
communications are created, new ways for perpetrators to contact their
victims are created as well. Some recently identified forms of computer
and electronic-based harassment include:
a)
Monitoring e-mail communication either on the victim’s
computer or through other programs.
b)
Sending threatening, insulting and harassing e-mails, text
messages, or social media messages (such as Facebook
messages, Google Chat instant messages, or messages via
Twitter).
c)
Disrupting victim’s e-mail by flooding a victim’s e-mail
inbox with unwanted mail or by sending a virus program.

P:5

d)
e)
f)
g)

h)
i)

j)
k)

D.

Using the victim’s e-mail identity to send false messages or
to purchase goods or services.
Using the Internet to seek and compile a victim’s personal
information for use in harassment.
Using prepaid calling cards to harass victims, making the
caller difficult to trace.
Use of GPS devices, which use satellite navigational
technology to pinpoint a person or object’s particular
location, to track a victim’s location.
Use of Caller Identification (Caller ID) to identify the
name, phone number, and location of victims.
Use of technologies such as walkie-talkies, baby monitors,
radio scanners, in order to intercept cordless telephone
calls.
Use of computer monitoring software that allows a stalker
to monitor the activities of his or her victim.
Use of tiny hidden video cameras to monitor a victim’s
activities. (Southworth, Finn, Dawson, Fraser and Tucker,
“Intimate Partner Violence, Technology, and Stalking”,
2007.)

Application of Stalking Laws in Cyberstalking cases
1.
The Federal Interstate Stalking Punishment and Prevention Act
The Federal Interstate Stalking Punishment and Prevention Act was
passed in 1996, and amended in 2006, to specifically account for and
criminalize cyberstalking. Some parts of the statute, particularly the
section criminalizing the use of interactive computer service to cause
substantial emotional distress, have been called into question by Federal
courts. Specifically, the section is susceptible to challenges based on
whether the use of public social media (such as Twitter, Instagram,
Facebook, etc.), which is not specifically targeted to the victim, can
constitute harassment. These challenges highlight the increasing
complexity of regulating and criminalizing cyberstalking, cyber
harassment, and cyber bullying behaviors.
2.

Interpretation of Stalking Laws to Include Cyberstalking
Courts across the country have been forced to interpret outdated and
limited stalking laws in order to determine whether new technological
means of stalking or harassing victims constitute crimes. Many courts
have been willing to interpret statutes to include new forms of technology
that fit the spirit of stalking laws.
a)
In New York v. Munn, 179 Misc. 2d 903, 688 N.Y.S.2d 384
(1999), a man was held liable for posting a message on an
Internet newsgroup asking others to kill a specific police
officer, mentioning him by name, as well as all other
NYPD police officers. The court found that a
communication made on the Internet is initiated by

P:6

b)

c)

d)

E.

electronic means or written, and is directed at the
complainant was covered under the stalking statute, and
that the message was directed at the complainant by the
inclusion of his name in the message.
In Remsburg, Administratix for the Estate of Amy Boyer v.
Docusearch Inc., 149 N.H. 148 (2003), a man purchased
his victim’s personal information from an information
broker, set up a Web site referencing stalking and killing
his victim, who he later shot and killed. The court held that
information brokers, in cases such as those, may be held
liable for the sale of such personal information. The New
Hampshire stalking statute references the state’s
harassment statute to define “communicates”, (,”) which
defines communications almost exactly as does the Georgia
statute, which includes specific electronic communications
while not limiting prohibited contact to communications by
those means (RSA 644:4).
In Colorado v. Sullivan, 53 P.3d 1181 (Colo. Ct. App.
2002), a Colorado man was in violation of the state’s
stalking law after installing a GPS on his estranged wife’s
car in order to check on her whereabouts during their
divorce. The Colorado stalking statute prohibits any form
of communication between the perpetrator and the victim,
and does not specifically designate electronic
communications as prohibited (C.R.S. 18-9-111).
In H.E.S. v. J.C.S., 815 A.2d 405 (NJ 2003), a man was
held liable under the state’s stalking law for watching his
estranged wife for months via a small camera placed in a
tiny hole in her bedroom wall. The New Jersey stalking
statute includes broad statutory language, and prohibits
communicating by any means: harassing, or conveying
written or verbal threats by any means of communication to
cause a reasonable person to fear for his or her safety (N.J.
Stat. §2C:12-10(1))

Venue in Cyberstalking
1.
With increased means of cyberstalking and electronic communications,
perpetrators are able to stalk victims from a distance. Perpetrators can
send e-mails, text messages, use GPS tracking, and other means of
cyberstalking across state lines. Georgia case law has not clearly
addressed when prosecution of an out-of-state perpetrator is appropriate.
a)
In Carlisle v. State, 273 Ga. App. 567 (2005), the defendant
mailed a letter to his victim’s apartment and was
subsequently charged with stalking. Venue was
appropriate in the county where the victim’s apartment was
located, because that was where the letter was received.

P:7

b)

F.

In Huggins v. Boyd, 697 S.E. 2d 253 (2010), a respondent
non-resident sent harassing e-mails to a woman living in
Georgia, where she resided. She filed for a temporary
protection order and the Court of Appeals found that the
conduct on which the TPO was based occurred at the
physical place where the respondent typed and sent the emails, and therefore that the temporary protection order
(TPO) should have been filed in South Carolina.

Internet Resources
It is nearly impossible to keep up with new technologies that can be used and
manipulated to stalk and harass victims. Several Web sites have resources that
can be used to keep up to date with new technologies.
The National Center for Victims of Crime: Stalking Resource Center
provides links to articles and publications on Internet safety, as well as
new means of cyberstalking.
http://www.victimsofcrime.org/our-programs/stalking-resource-center
The National Network to End Domestic Violence: Safety net program
assists in training victims, advocates, and law enforcement on
cyberstalking and electronic harassment. The page features links and
resources related to cyberstalking:
http://www.nnedv.org/projects/safetynet.html

P:8

Q.

APPENDIX Q – CONFIDENTIALITY OF DOMESTIC
VIOLENCE ORGANIZATIONAL RECORDS

Table Of Contents
Introduction ......................................................................................................... Q:2
A.

Overview Chart ....................................................................................... Q:3

B.

Confidentiality ........................................................................................ Q:5

1.

Violence Against Women Act ................................................................ Q:5

2.

Family Violence Protection and Services ............................................... Q:5

3.

United States Postal Service ................................................................... Q:6

4.

GA Statute Requiring Confidentiality of Domestic Violence
Shelter ................................................................................................... Q:66

5.

State Standards for Certification ........................................................... Q:66

C.

Privilege ................................................................................................ Q:66

1.

GA Privilege Statute ............................................................................. Q:67

2.

Federal Rule of Evidence 501 ............................................................... Q:78

3.

Federal Case Law on Privilege……………………………. .................. Q:8

4.

Development of Privilege ...................................................................... Q:99
Dean Wigmore’s 4 criteria .................................................................... Q:99

D.

Right to Privacy .................................................................................... Q:99

1.

GA Right to Privacy.............................................................................. Q:99

Q:1

Introduction
Communications between a representative of a domestic violence
organization and a victim of domestic violence are often initiated in
confidence, and, in general, the victim and counselor assume that
communications during counseling are meant to be confidential. If the
organization’s records or communications are not kept confidential,
victims may be reluctant to seek counseling or assistance. (Department of
Justice, Report to Congress on the Confidentiality of Communications
Between Sexual Assault or Domestic Violence Victims and Their
Counselors, Findings and Model Legislation (1995)). In a variety of cases
involving domestic violence—from divorces to custody disputes to
criminal cases—a party may attempt to compel testimony or production of
documents from shelters.
While nothing in federal statutory law explicitly requires that domestic
violence organizational records be kept confidential, when domestic
violence organizations receive grants under the Family Violence
Protection and Services Act (FVPSA), they are required to prove that
procedures are in place to keep records confidential. Domestic violence
organizations also receive grants under the Violence Against Women Act
(VAWA) in order to develop confidentiality protocols to protect
personally identifying information of victims. Domestic violence shelters
in Georgia are certified by the Department of Health and Human Services,
and receive funding under FVPSA, with many also receiving funding
under VAWA. When domestic violence shelters receive subpoenas or
third-party requests to produce documents or testimony, questions may
arise as to the legality of their complying with the requests and as to the
confidentiality of the organization’s records. There is no Georgia statute
protecting the confidentiality of domestic violence organization records
and communications with victims.
Some domestic violence shelter staff(s) already have privilege, based on
the privilege between a patient and a licensed social worker or
professional counselor during the psychotherapeutic relationship, as
recognized in O.C.G.A. § 24-5-501 (effective January 1, 2013). However,
O.C.G.A. § 24-5-509 creates a new privilege for communications between
a family violence or sexual assault victim and counselors, including
volunteers, providing services to such victims at family violence shelters
and rape crisis centers. However, in both civil and criminal cases, a party
may by motion, compel the testimony of an agent of a family violence or
rape crisis unit to whom disclosures were made by an alleged victim upon
showing: that the evidence is material and relevant; that it is not otherwise
available; and, that the probative value of the evidence sought
substantially outweighs “the negative effect of the disclosure on the
victim.” Other than evidence of prior inconsistent statements, disclosures
will not be ordered if the only purpose of the evidence relates to the

Q:2

alleged victim's character for truthfulness. If the moving party requests
disclosure on proper grounds, the court is to take the evidence under seal
for in camerareview and may order disclosure of those portions of the
evidence which are proper under the code section.
If a communication is not privileged under the Georgia statute, Federal
courts can extend privilege on a case-by-case basis where the public
interest in keeping the communication confidential outweighs the need for
the evidence Jaffee v. Redmond, 518 U.S. 1(1996). Courts often use Dean
Wigmore’s factors to determine whether to apply privilege: (1) the
communications must originate in confidence; (2) confidentiality must be
essential to the proper maintenance of the relationship; (3) the relationship
must be one that society deems worthy of protecting; and (4) disclosure
must injure the relationship more than it benefits the litigation. Wigmore,
A treatise on the Anglo-American System of Evidence in Trials at Common
Law,. Vol. 5, Pg. 2, §2285. Although Georgia state courts are not required
to follow Jaffee, there is a history of courts extending privilege beyond the
statute, such as extending the psychiatrist-patient privilege to include
communications between a general physician and a patient for a
therapeutic purpose. Wiles v. Wiles, 264 Ga. 594.

A.

Overview Chart

Overview
Violence Against
Women Act

Family Violence
Protection and
Services Act
(FVPSA)
Federal Rule of
Evidence 501;
Notes of
Committee on
Judiciary (H.R.
No. 93-650)

Commissioned a report on confidentiality
for domestic violence victims, in an effort
to improve federal provisions and state
provisions protecting domestic violence
victims, and provides grants to
organizations to allow them to develop
procedures and systems to keep personally
identifying information of victims
confidential.
In order to receive grants under FVPSA, an
organization must prove that procedures are
in place to ensure confidentiality of records.
House committee suggests that principles of
common law privilege should be interpreted
in light of “reason and experience,” and that
privilege should be recognized on a “caseby-case” basis.

Q:3

Department of
Justice Report
to Congress
(1995)
Federal Case
Law – Extension
of Privilege
GA Right to
Privacy

GA Privilege
Statute
6

O.C.G.A. § 24-5-509

GA Statute –
Confidentiality
for Domestic
Violence Shelter
Location
GA Standards
for Certification
O.C.G.A. § 1913-21 et. seq.
G. Comp. R. &
Regs. r. 290-546-.05

Q:4

Suggested model statutes for states to
ensure confidentiality for communications
between sexual assault and domestic
violence victims and their counselors.
Extended privilege to include
communications between a psychotherapist
and his or her patient. Jaffee v. Redmond,
518 U.S. 1 (1996).
Recognizes right to privacy for
communications between certain persons
for the public good. Pavesich v. New
England Life Insurance Co., 122 Ga. 190
(1905).
O.C.G.A. § 24-5-509 (effective January 1,
2013) creates a new privilege for
communications between a family violence
or sexual assault victim and counselors,
including volunteers, providing services to
such victims at family violence shelters and
rape crisis centers.
Knowing disclosure of location of a
domestic violence shelter without
permission of the shelter’s director
constitutes a misdemeanor. O.C.G.A. § 1913-23
DHS sets minimum standards which
shelters must follow to receive state and
federal funds administered by DHS.
Residents’ personal information shall be
kept confidential.

B.

Confidentiality
1.
Violence Against Women Act
42 U.S.C.A. § 13942: Confidentiality of communications between sexual
assault or domestic violence victims and their counselors.
Provides for a study, report, and recommendations for measures to
be taken to protect the confidentiality of communications
between domestic violence victims and their counselors.
For a summary of the report, see below.
42 U.S.C.S. § 14043b: Grants made to protect the privacy and
confidentiality of victims of domestic violence, dating violence, sexual
assault, and stalking.
Grants are made to ensure that personally identifying information
of victims of domestic violence, sexual violence, stalking, and
dating violence are not disclosed
14043b-1: Grants made under this subtitle may be used —
to develop or improve protocols, procedures, and policies
for the purpose of preventing the release of personally
identifying information of victims (such as developing
alternative identifiers);
to defray the costs of modifying or improving existing
databases, registries, and victim notification systems to
ensure that personally identifying information of
victims is protected from release, unauthorized
information sharing and disclosure;
to develop confidential opt-out systems that will enable
victims of violence to make a single request to keep
personally identifying information out of multiple
databases, victim notification systems, and registries; or
to develop safe uses of technology (such as notice
requirements regarding electronic surveillance by
government entities), to protect against abuses of
technology (such as electronic or GPS stalking), or
providing training for law enforcement on high-tech
electronic crimes of domestic violence, dating violence,
sexual assault, and stalking.
2.
Family Violence Protection and Services
42 U.S.C.S. § 10402: State demonstration grants authorized.
Grants under this subsection cannot be made unless the organization
provides “documentation that procedures have been developed and
implemented including copies of the policies and procedure, to
assure the confidentiality of records pertaining to any individual
provided family violence prevention or treatment services by any
program assisted under this title and provide assurances that the
address or location of any shelter-facility assisted under this title
will, except with written authorization of the person or persons
responsible for the operation of such shelter, not be made public.”
Q:5

3.

4.

5.

C.

United States Postal Service
Required to implement regulations to secure confidentiality of shelters and
victims’ addresses. (42 U.S.C. 13951 (1994).)
GA Statute Requiring Confidentiality of Domestic Violence Shelter
O.C.G.A. § 19-13-23 (2010)
Any person who knowingly publishes, disseminates, or otherwise
discloses the location of a family violence shelter is guilty of a
misdemeanor except when done during confidential
communications between a client and his or her attorney, or when
authorized by the director of the shelter.
State Standards for Certification
O.C.G.A. § 19-13-21 et. seq.
The Department of Human Services is required to establish minimum
standards for shelters that serve victims of domestic violence.
Shelters must comply with DHS standards in order to receive state and
federal funding through the Department.
G. Comp. R. & Regs. r. 290-5-46-.05
“Personal information shall be treated as confidential and shall not be
disclosed except to the resident, the management, the Department’s
licensing agency and others for whom written authorization is
given by the resident.”

Privilege
1.
GA Privilege Statute
O.C.G.A. § 24-9-21 (2010) (O.C.G.A. § 24-5-501(a)(1) (effective January
1, 2013, replaces § 24-9-21)).
There are certain admissions and communications excluded on
grounds of public policy. Among these are:
(1) Communications between husband and wife;
(2) Communications between attorney and client;
(3) Communications among grand jurors;
(4) Secrets of state;
(5) Communications between psychiatrist and patient;
(6) Communications between licensed psychologist and patient as
provided in Code Section 43-39-16;
(7) Communications between patient and a licensed clinical social
worker, clinical nurse specialist in psychiatric/mental health,
licensed marriage and family therapist, or licensed professional
counselor during the psychotherapeutic relationship; and
(8) Communications between or among any psychiatrist,
psychologist, licensed clinical social worker, clinical nurse
specialist in psychiatric/mental health, licensed marriage and
family therapist, and licensed professional counselor who are
rendering psychotherapy or have rendered psychotherapy to a

Q:6

patient, regarding that patient's communications which are
otherwise privileged by paragraph (5), (6), or (7) of this Code
section.
As used in this Code section, the term "psychotherapeutic
relationship" means the relationship which arises between a
patient and a licensed clinical social worker, a clinical
nurse specialist in psychiatric/mental health, a licensed
marriage and family therapist, or a licensed professional
counselor using psychotherapeutic techniques as defined in
Code Section 43-10A-3 and the term "psychotherapy"
means the employment of "psychotherapeutic techniques."
Lipsey v. State (170 Ga. App. 770 (1984))
Found that there is no privilege created just because a
communication is made in confidence. Parties must bear to each
other one of the specific relationships recognized as privileged by
the statute.
Wiles v. Wiles (264 Ga. 594 (1994))
Extended psychiatrist-patient privilege to a communications between
a patient and a medical doctor who diagnosed and treated emotional
and mental conditions but who was not a licensed psychiatrist.
(9) Communications between family violence counselors.
O.C.G.A. § 24-5-509 (effective January 1, 2013) creates a
privilege for communications between a family violence or
sexual assault victim and counselors, including volunteers,
providing services to such victims at family violence
shelters and rape crisis centers. However, in both civil and
criminal cases, a party may by motion, compel the
testimony of an agent of a family violence or rape crisis
unit to whom disclosures were made by an alleged victim
upon showing: that the evidence is material and relevant;
that it is not otherwise available; and, that the probative
value of the evidence sought substantially outweighs “the
negative effect of the disclosure on the victim.” Other than
evidence of prior inconsistent statements, disclosures will
not be ordered if the only purpose of the evidence relates to
the alleged victim's character for truthfulness. If the moving
party requests disclosure on proper grounds, the court is to
take the evidence under seal for in camerareview and may
order disclosure of those portions of the evidence which are
proper under the code section.

2.

Federal Rule of Evidence 501
General Rule

Q:7

3.

Privilege must be governed by the rules of common law except in civil
actions based on state substantive law, in which privilege should
be determined in accordance with state law. (Fed. R. Evid. 501)
Notes of Committee on the Judiciary (House Report No. 93-650)
Principles of common law should be interpreted in light of reason and
experience (House Report No. 93-650)
Recognition of a privilege should be made on a case-by-case basis.
(House Report No. 93-650)
Jaffee v. Redmond, 116 S. Ct. 1923 (1996)
Interprets 501 as allowing and requiring Federal courts to establish
new privileges where the need for the privilege outweighs the cost
in loss of evidence.
Privilege sought to be established must “serve public ends.” (116 S.
Ct. at 1929)
Jaffee v. Redmond - Federal Caselaw on Privilege
518 U.S. 1, 116 S. Ct. 123 (1996).
Holding
Confidential communications between a licensed psychotherapist
and her patients in the course of diagnosis or treatment are
protected from compelled disclosure under Fed. Rule of
Evidence 501(30 Creighton L. Rev. 319).
Extension of Privilege
The court used a balancing test from Trammel v. U.S. (45 U.S. 40,
51 (1980)) in order to determine whether extension of privilege
was appropriate. They asked: does privilege promote sufficiently
important interests to outweigh the need for probative evidence?
The court suggests that a privilege must serve both important
private interests as well as public ends. Jaffee, 518 U.S. at 10.
Psychotherapist-patient Privilege
The reasoning used by the Court in Jaffee to justify the expansion
of privilege to include communications between a
psychotherapist and a patient could likewise be used to justify
extension of privilege to include communications between a
domestic violence counselor and victim. Id.
The court reasoned that the privilege was “rooted in the imperative
need for confidence and trust.” Jaffee, 518 U.S. at 10 (quoting
Trammel, 445 U.S. at 51). The relationship between the domestic
violence counselor and victim is likewise rooted in confidence
and trust, as a domestic violence counselor is often sought out by
a victim looking to escape and hide from a violent partner.
Effective psychotherapy depends upon an “atmosphere of
confidence and trust” due to the “sensitive nature of the problems
for which individuals consult psychotherapists.” Id. At 10. A
similar statement can be made about the atmosphere of
confidence and confidentiality present in a domestic violence
shelter, during communications between a domestic violence

Q:8

4.

D.

counselor and victim. The problems for which a victim consults
a domestic violence counselor are of a similarly sensitive nature
to problems for which an individual consults a psychotherapist.
Development of Privilege
Dean Wigmore’s 4 criteria
(John H. Wigmore, A treatise on the Anglo-American System of Evidence
in Trials at Common Law, vol. 5, pg 2, §2285)
Often cited by courts, such as the Jaffee court, as the basis for extending
privilege.
Four conditions necessary to establish privilege
The communications must originate in a confidence that they will not
be disclosed;
This element of confidentiality must be essential to the full and
satisfactory maintenance of the relation between the parties;
The relation must be one which in the opinion of the community ought
to be sedulously fostered; and
The injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for
the correct disposal of litigation.

Right to Privacy
1.
GA Right to Privacy
Ga. Const. Art. I, § I (2010)
No person shall be deprived of life, liberty, or property except by due
process of law.
Pavesich v. New England Life Insurance Co. (122 Ga. 190 (1905)).
“The right of privacy within certain limits is a right derived from natural
law, recognized by the principles of municipal law, and guaranteed to
persons in this State by the constitutions of the United States and of the
State of Georgia, in those provisions which declare that no person shall
be deprived of liberty except by due process of law.” 122 Ga. at 197.
The law asserts that certain communications are made private (such as
those between husband and wife or between attorney and client) to
recognize that “for the public good some matters of private concern are
not to be made public even with the consent of those interested.” 122
Ga. at 201

Q:9

R. APPENDIX R – RESTITUTION, VICTIM’S COMPENSATION,
AND PUBLIC BENEFITS
Table Of Contents
A.Introduction……………………………………………………………R:2
B.Restitution……………………………………………………………..R:2
1. Definition……………………………………………………………...R:2
2. Authority………………………………………………………………R:2
3. Monitory and Enforcement…………………………………………....R:3
4. Georgia Procedure……………………………………………………..R:3
5. Best Practicces…………………………………………………….…..R:4
C. Victim’s Compensation………………………………………………R:5
1. Generally………………………………...…………………………....R:5
2. Georgia………………………………………………………………..R:5
3. Best Practices………………………………………………………….R:5
D. Alternative Options………………………………………………..…R:5
1. Child Support……………………………………………………..…...R:5
2. Public Benefits……………………………………………………..….R:6

R:1

A. Introduction
Domestic violence, sexual violence or stalking are known to cause emotional,
psychological and physical injury to a victim. However, those types of violence
can also cause staggering economic injury. As an example, inclusive of medical
and mental health care, lost wages and property, and court fees, the lifetime cost
of a rape can exceed $145,000 (Delisis, 2010). Overall, the costs of domestic
violence, sexual violence and stalking exceed $5.8 billion yearly (NCIPC 2003).
These costs, and this type of injury is often overlooked as courts focus on
securing the safety of the victim through the criminal justice system and through
civil protection orders.
Aside from the justice of ensuring that a victim is reimbursed for all of the
expenses caused by domestic violence, sexual violence or stalking, there is a
safety issue that occurs with the economic loss, particularly in the instance of
domestic violence. When a domestic violence survivor leaves a domestic
relationship, and loses the income of the abuser, he or she may be giving up
economic security. The survivor may have difficulty paying for basic needs, such
as food or shelter, as well as other needs that are a direct result of the domestic
violence, such as health care or relocation. These financial difficulties make
survivors vulnerable for further abuse and violence, and may serve as a rationale
for returning to a violent relationship.
There are two key ways to improve safety for victims and survivors of domestic
violence, as well as to reimburse them for all of the associated costs. First, courts
have the option of ordering restitution to be paid from the offender to the victim.
Second, government programs can provide crime victim compensation to
reimburse victims for a variety of crime-related expenses. In addition to those
options, there are additional avenues through which victims may receive
economic relief or reimbursement for the expenses associated with domestic
and/or sexual violence.
B. Restitution
1. Restitution is court-ordered payment by an offender, to a victim, for the
harm caused by the offender’s wrongful acts. Restitution benefits victims by
providing them with compensation for economic losses, by holding the
offender accountable and by allowing them to see that the criminal justice
system responds to their needs and losses. Restitution also impacts offenders
by providing them with the experience of taking responsibility for the
injuries they’ve caused and of being held accountable to the victim and
society. In some cases, this might give offenders the opportunity to
understand the injury they’ve caused and the consequences suffered by the
victim.
2. In every state, courts have the statutory authority to order restitution. In 18
states, victims have a state-constitution based right to restitution. Generally,

R:2

when considering whether to order restitution, courts consider state and
local policy, the financial burden placed on the victim, and the financial
resources of the defendant. Though an abuser can be ordered to pay
restitution at several points in the criminal justice process, he or she is most
often not ordered to make any restitution to the victim.
i. Abusers can be held responsible for paying for a wide range of
expenses. In domestic violence situations, victims’ safety can be
increased by allowing restitution for expenses such as: moving costs,
credit card fees, attorneys fees, expenses related to participation in
the criminal justice system, home security, and future mental health
care, among others.
3. Monitoring and Enforcement
i. Though it is important to increase the availability of restitution for
victims of domestic or sexual violence, obtaining an order of
restitution is useless if that order is not enforced. Several states have
come up with systems that monitor compliance; for example: in
Michigan, probation or parole officers are required to review every
case in which restitution was ordered twice a year, to make sure that
the payments are being made as ordered, and in Utah the Corrections
the Department is responsible for collecting restitution, and files a
report if an defendant defaults.
ii. The state can also increase the likelihood of payment of restitution by
requiring state payments to the defendant to be used to satisfy
restitution orders. Some state statutes allow various state payments,
such as lottery winnings, witness fees, or bond proceeds, to be applied
to restitution. In addition, many state statutes require that prison
work programs direct a portion of an offender’s wages to the payment
of restitution, if it has been ordered.
iii. If an offender defaults on the payment of restitution, probation or
parole is a means by which an offender might be compelled to comply.
Many states provide that probation or parole may be revoked for
failure to pay restitution, if the failure to pay is willful. Because that is
difficult to prove, this remedy is rarely invoked. Similarly, some states
permit probation or parole to be extended when restitution is unpaid
at the time that the supervision would otherwise expire.
4. Georgia Procedure
i. If an offender that has been ordered to pay restitution, and is placed
on probation, then the restitution is a condition of the probation.
O.C.G.A. 17-14-3(b) (2012).
ii. If an offender that has been ordered to pay restitution is granted relief
by either the Department of Juvenile Justice, the Department of
Corrections or the State Board of Pardons or Paroles, then the order to
make restitution becomes a condition of that relief. O.C.G.A. 17-143(c)(2012).
iii. There are statutorily outlined factors for the court to consider in
determining restitution (O.C.G.A. 17-14-10(2012)):
R:3

1. Financial resources and other assets of offender
2. Earnings or other income of offender
3. Financial obligations of the offender, including obligations to
dependents
4. Amount of damages
5. Goal of restitution to the victim and the goal of rehabilitation to
the offender
6. Previously made restitution
7. Period of time during which restitution order will be in effect
8. Other factors which the court deems appropriate
iv. In a criminal case, the burden of demonstrating the victim’s loss is on
the state and the burden of demonstrating the offender’s financial
resources
v. Once restitution has been ordered, it is enforceable as a civil judgment
by execution. If an offender fails to comply with the restitution order,
the order can be enforced by an attachment for contempt upon the
application of the prosecuting attorney or the victim, and such failure
can be grounds to revoke or cancel relief, such as earned time
allowances. O.C.G.A. 17-14-13 (2012).
5. Best Practices
i. In many cases, victims fail to request restitution because they are
unaware of their right to do so. Police officers, prosecutors and courts
should make victims aware of their right to restitution, to give them
the time and opportunity to gather evidence to document economic
losses.
ii. The collection of restitution can be improved by conducting a
thorough investigation of convicted offenders’ assets, either before or
after restitution is ordered. In order to do this effectively, there must
be a coordinated effort between law enforcement, prosecution, courts,
probation, corrections, parole and victim services. This information
will allow the court to craft a payment plan for the offender, lessening
the likelihood of default. If the offender does default, having this
information can assist in collection efforts.
iii. In order to prevent defendants from concealing or wasting assets to
avoid paying restitution, prosecutors should seek a restraining order
or injunction to preserve assets that may later be used to pay
restitution.
iv. A system should be in place to monitor compliance with and enforce
restitution orders; options include attaching state payments or prison
work program wages, utilizing probation or parole, utilizing private
collection agencies, or converting restitution orders to civil
judgments.
1. In Georgia, whichever official is responsible for collecting
restitution is required to review the case at least twice per year
to ensure that restitution is being paid as ordered. If the
restitution is not being paid as ordered, a written report of the
R:4

violation must be filed with the court. O.C.G.A. 17-14-14(c)
(2012).
C. Victim’s Compensation
1. Generally
1.
Every state has established a compensation program for
victims of crime. These programs reimburse medical costs, mental
health counseling, lost wages or loss of support, as well as other
crime-related expenses. In order to receive compensation, victims
must comply with state statutes and rules.
2. Georgia
1.
The Georgia Crime Victim’s Compensation Program is
administered by the Criminal Justice Coordinating Council.
Compensation is available to people who: are physically injured as a
result of a violent crime, personally witnessed or were threatened
with a violent crime, were hurt helping a victim of a violent crime, are
the parent or guardian of someone killed or injured as a result of a
crime, are a dependent of a homicide victim who relied on the victim
for support. Compensation is not available to parties that provoked or
consented to events that led up to the crime.
2.
In order to be eligible for compensation, the victim or witness
must have reported the crime within 72 hours. In cases of domestic
violence, obtaining a temporary protective order within 72 hours of
the incident will fulfill that requirement. The 72 hour requirement
can also be waived for good cause shown. They must also file an
application within 1 year of the crime, unless they can show good
cause. There are categorical caps for covered expenses in each benefit
category; the maximum program amount is $25,000 per victim.
3. Best Practices
1.
Law enforcement officers, prosecutors, and the courts should
ensure that victims are made aware of the availability of
compensation. Victims of domestic violence should be referred to the
local domestic violence center or shelter or to the victim witness
program at the prosecutor’s office for assistance in working with the
Criminal Justice Coordinating Council on applications for
compensation.
D. Alternative Options
Beyond seeking compensation for injuries that occurred as a result of violence, survivors have
other recourses available to them to alleviate economic issues that arise and may persist after the
domestic violence relationship has ended.
1. Child Support
i. In cases that involve shared children, parents have the ability to file a
petition with the court for child support. It should be noted that

R:5

because control can often be an aspect of a domestic violence
relationship, a respondent may attempt to use money, or the payment
of child support, to maintain some kind of economic control over the
petitioner. There are steps that can be taken by the courts to reduce
the likelihood of such control and to ensure the safety of the
petitioner.
ii. See also Appendix N
2. Public Benefits
i. Victims in Georgia have the option for applying for Temporary
Assistance for Needy Families (TANF), Georgia’s welfare program.
Though Georgia has established a 48-month limit on TANF, it grants
hardship waivers to temporarily waive the limit if a family member
has been, is, or may become a victim of domestic violence.
ii. Survivors of domestic violence who quit their jobs due to safety
reasons may be eligible for unemployment benefits. Scott v. Butler et
al. (No. A14A0105 decided June 4, 2014). The issue presented was
whether an employee is automatically disqualified from receiving
unemployment benefits when leaving her job based on the reasonable
likelihood of experiencing future violence at the workplace by a third
party who has no relationship to the employer. The court noted that
Georgia public policy favors granting benefits under OCGA § 34-8-2 to
“persons unemployed through no fault of their own” and determined
that even though the unsafe conditions were not the employer’s fault,
denying benefits would basically, “require her to work in a dangerous
environment wherein she and numerous others would be
unnecessarily exposed to the actual threat of violence due to
circumstances that are entirely beyond their control. This would be an
outcome that is unjust, inequitable, and inconsistent with the
expressed purpose of the Act.”

R:6

S. APPENDIX S – JUDICIAL COMPLIANCE HEARINGS
Table Of Contents

S:1

A.

Introduction .............................................................................................. S:2

B.

Offender Accountability .......................................................................... S:2

C.

Domestic Violence Courts ....................................................................... S:3

1.

Generally .................................................................................................. S:3

2.

Goals. ....................................................................................................... S:3

D.

Judicial Review Hearings ........................................................................ S:4

1.

Generally .................................................................................................. S:4

2.

Procedure ................................................................................................. S:4

3.

Judicial Responses ................................................................................... S:4

E.

Georgia Model Practices .......................................................................... S:5

1.

Athens-Clarke County Compliance Officer Program .............................. S:5

2.

Troup County Procedures ........................................................................ S:5

A. Introduction
Even after a court has handled a domestic violence case, and has drafted
orders designed to ensure the safety of a domestic violence victim, the
victim’s safety can be compromised if the abuser fails to adhere to the court’s
orders. While courts have procedures in place that are designed to hold
offenders accountable, they are not always sufficient to ensure victim safety.
In criminal cases, offenders are often sentenced to probation. Probation
allows for heightened accountability; if an offender fails to adhere to the terms
of his or her probation, the probation supervisor may impose graduated
sanctions or, if circumstances warrant, may arrest the offender without
warrant. O.C.G.A. 42-8-38(a) (2012). The probation officer, or law
enforcement officers, has the discretion and the power to hold an offender
responsible for failure to comply with terms of probation.
However, in civil cases, there is no government actor or agency that has the
same power to hold an offender accountable for failing to comply with court
orders. If an offender fails to comply with a civil order, the only way to hold
that offender accountable is for the victim report violations to the police or to
bring a contempt action in court. This system requires the victim to be the first
line of defense against his or her abuser. Victims must expend time and
energy to return to court. The victim may also be required to gather and
produce evidence of the abuser’s failure to adhere to court orders. This
system also increases the danger to domestic violence victims. Requiring a
contempt hearing requires a victim to interact with his or her abuser, by
appearing in court. In some cases, a victim may avoid undergoing the effort of
returning to court if he or she is fearful of retribution from his or her abuser or
if they believe they will be in danger.
There are many different means by which state agencies and courts can hold
domestic violence offenders accountable. Many jurisdictions have established
Domestic Violence Courts for just such a purpose. These courts develop an
expertise in domestic violence which is used to improve victim safety,
increase accountability of offenders through effective intervention and
monitoring, and to provide opportunities for offender rehabilitation through
counseling and treatment. Other jurisdictions have designated compliance
officers, who regularly monitor an offender’s compliance with court orders,
such as an order to attend Family Violence Intervention Program (FVIP)
classes.
B. Offender Accountability
1. Many jurisdictions have had difficulty holding offenders accountable, and
thus ensuring victim safety. Domestic violence courts and judicial
hearings are designed to address that problem. Judges have the
opportunity to craft tailored responses to each offender, and the reviews
encourage and allow for a coordinated community response. These

S:2

systems have an enhanced ability to hold offenders to court orders and to
quickly respond to those who fail to comply.
2. Court monitoring through periodic court compliance hearings has been
shown in studies to increase Family Violence Intervention Program
attendance rates. In a multistate evaluation of four different judicial
compliance hearing programs, intervention program completion rates
rose from under 50% to 65% (Gondolf 1997). Other studies have shown
that in jurisdictions with compliance hearings, completion rates increase
to over 50% (Cissner 2006).
C. Domestic Violence Courts
1. As part of a broad “problem-solving” court movement, which included the
establishment of drug courts, mental health courts, and community courts,
among others, domestic violence courts have emerged across the U.S. As of
2009, 208 domestic violence courts had been established (Center for Court
Innovation 2009). These courts handle domestic violence cases on separate
calendars, maintain separate calendars, and are headed by specially trained
judges.
2. Goals
1.
Victim Safety
i. Many domestic violence courts feature dedicated victim
advocates, who facilitate the victim’s access to services.
These advocates provided a number of services, including
accompanying victims to court, safety planning, explaining
the criminal justice system, providing housing referrals,
and counseling.
2.
Offender Accountability
i. Regular judicial monitoring of compliance with courtmandated programs and other court orders results in
prompt response to violations.
ii. Many domestic violence courts refer offenders to
intervention programs. While the most prevalent
intervention program used was a batterer program, which
attempts to rehabilitate an offender, these courts also
require offenders to report to other programs, such as
alcohol or substance abuse treatment or mental health
treatment, if such intervention is indicated.
iii. Domestic violence courts use various methods to hold
offenders accountable. Many use probation supervision,
but receive compliance reports from probation officers and
offices. Some courts also use judicial monitoring or regular
court review hearings.
iv.
When an offender fails to comply with court orders,
responses include verbal admonishment, immediate return

S:3

4.
i.

to court, increased court appearances, revocation of
probation and jail.
a. Though studies have shown a lack of consistency
across courts, such variation may be a response of
the court attempting to tailor responses and
consequences to individual offenders.
Administration of Justice
Domestic violence courts attempt to ensure a consistent
application of statutory requirements, legally appropriate
procedures, and sentences. This is achieved by ensuring
that judges in domestic violence courts are specially
trained, and by encouraging coordination between criminal
justice agencies, victim service organizations and offender
programs.

D. Judicial Review Hearings
Judicial review hearings require an offender to appear before the judge postconviction or post-civil order review to demonstrate that he or she is
complying with either the conditions of probation or the civil order. The
purpose of these hearings is to improve offender compliance and victim safety
by holding the offender accountable to judicial orders and removing the
burden of holding the offender accountable from the victim.
1.
Procedure
i. Judicial review hearings are regularly scheduled court
appearances, often held in intervals of 30 days after sentencing or
the issue of a civil protection order.
ii. Probation officers monitor the individual offenders and seek input
from victims to draft comprehensive reports, which are provided
to the judge prior to the hearings.
iii. The judge uses that review, and a dialogue with the offender, as
well as various actors and agencies (probation officers,
prosecutors, the defense bar, FVIP programs, victim advocates,
etc.) to sanction those with poor compliance and to encourage
those who are successfully complying with probation or civil
orders.
2.
Judicial Responses
i. Judicial review hearings provide judges with wide discretion and a
range of sentencing options to encourage compliance with court
orders; these hearings allow the judge to deviate from a “one-sizefits-all” approach to dealing with domestic violence offenders and
allow a judge to tailor his or her responses to individual offenders.
ii. Sanctions can include:
1. Community service
2. Fines
3. Restitution

S:4

3.

4. Intensive probation
5. Additional FVIP classes
6. Full and partial jail time
An evaluation of model domestic violence courts found that when the
court revoked probation for noncompliance, there was significantly less
reabuse (Harrell 2007).

E. Georgia Model Practices
1.
Athens-Clarke County Compliance Officer Program
i. In Athens-Clarke County, the responsibility of monitoring
offenders’ compliance with orders to attend FVIP falls to a
designated compliance officer within the Probation department.
Prior to the designation of a compliance officer, compliance with
FVIP orders was 7%. Since a compliance officer has been in place,
compliance with FVIP orders has risen to 70%.
ii. In civil cases, after a Temporary Protective Order (TPO) is issued,
the respondent is required to enroll in FVIP within 20 days, and
provide the designated compliance officer of proof of enrollment
within 30 days. If the respondent fails to provide the required
proof, the officer will attempt to make contact with the
respondent. If the officer cannot contact the respondent, he or she
will request a status hearing from the issuing judge. The status
hearing will ordinarily occur two weeks from the date that it is
requested.
1. If the respondent provides the officer with proof of FVIP
enrollment, the officer will request that the judge remove
the hearing from the docket.
2. If the respondent fails to enroll in FVIP, but appears at the
status hearing, the judge will give the respondent a new
deadline for enrollment.
3. If the respondent fails to appear at the status hearing, the
judge will issue an arrest order. The respondent will be
brought to court, questioned by the judge, and released
with a new deadline for enrollment.
iii. In criminal cases, an offender must enroll in FVIP within 30 days
of receiving a sentence of probation or within 30 days of leaving
jail.
1. If the offender fails to enroll in FVIP within 60 days, the
probation office issues a probation warrant revocation.
The offender is arrested and held in jail before appearing
before the judge. Some portion of the offender’s probation
is revoked and, upon relief, the offender is given 30 days to
enroll in FVIP.
2.
Troup County Procedures

S:5

i. Defendants on pre-trial diversion or who have been convicted of
an offense under the Family Violence Act are required to attend
"status hearings."
1. During "status hearings" defendants must provide the
Judge with an update on how they have been complying
with court orders, such as FVIP.
2. The court ensures that defendants on pre-trial diversion
have not committed any new offenses and have complied
with any other conditions of the pre-trial diversion.
a. When defendants fail to meet their requirements for
pre-trial diversion, the case is set for trial.
3. For defendants on probation, the probation officer appears
at the hearing to give a report on the defendant's
compliance with the conditions of probation.
a. When defendants fail to meet their requirements for
probation, a probation revocation hearing is set.

S:6

T. APPENDIX T – STRANGULATION
Table Of Contents

T:1

A.

What is strangulation?.............................................................................. T:2

B.

What are the signs and symptoms of strangulation? ................................ T:2

C.

How common is strangulation? ............................................................... T:3

D.

Why focus on strangulation? ................................................................... T:4

E.

Is strangulation a lethality factor? ............................................................ T:4

F.

How is strangulation minimized? ............................................................ T:4

G.

How can strangulation be prosecuted? .................................................... T:5

H.

What else can communities do? ............................................................... T:5

Introduction
In the past, strangulation has been one of the most overlooked forms of domestic violence. It
was often minimized, and there was no effective way to prosecute it. However, recently the
impacts of strangulation have been realized and it has been given more attention in the
domestic violence community. In 2014, Georgia became the 38th state to pass specific
legislation criminalizing strangulation as a felony (Georgia Code § 16.5.21).
A.What is strangulation?
Strangulation is a form of asphyxiation resulting in a loss of oxygen and cell death in vital
organs (The Investigation and Prosecution of Strangulation Cases, Training Institute on
Strangulation Prevention & CDAA 63). It can be performed by hanging, manually (with the
abuser’s hands), or with a ligature, which could be a cord, wire, or other object that is
wrapped around the neck so that pressure applied creates compression and constriction of the
neck (CDAA and Training Institute 65). From the outside of the throat in, strangulation can
first affect the jugular vein, followed by the carotid artery, and then the trachea (windpipe).
Constricting the jugular vein requires the least amount of pressure, while the trachea requires
the most. It only takes four pounds of pressure to cut off the jugular veins (less pressure than
is required to open an interior door), which prevents blood from leaving the brain. Ten
seconds of this can lead to brain damage and two minutes results in full unconsciousness.
Four minutes of jugular pressure will result in death. Pressure on the carotid artery prevents
oxygenated blood from reaching the brain with similar effects. Eleven pounds of pressure
will cut off both the jugular veins and the carotid arteries, which exponentially speeds up the
time frame for damage caused to the victim. Death by pressure to the carotid arteries can
occur in as little as 15-20 seconds (The Investigation and Prosecution of Strangulation Cases,
Training Institute on Strangulation Prevention & CDAA 67).
When being strangled, victims tend to experience three distinct stages: disbelief, primal, and
resignation. Disbelief is the shortest in duration, and occurs when the victim simply cannot
fathom that she or he is being strangled. During the primal stage, the victim fights with
whatever means possible to stop the strangling. This may cause injury to both the victim and
the perpetrator. The final stage is resignation, in which the victim gives up and goes limp,
feeling that nothing can be done and death is inevitable (McClane, Hawley, and Strack).
B.What are signs and symptoms of strangulation?
External injuries may or may not present themselves after jugular or carotid compression
(The Investigation and Prosecution of Strangulation Cases, Training Institute on
Strangulation Prevention & CDAA 67). Only 50% of strangulation victims present with
visible injury, and only 15% have injuries sufficient to photograph (The Investigation and
Prosecution of Strangulation Cases, Training Institute on Strangulation Prevention & CDAA
7). However, between 45 and 80 percent of victims will experience a change in or complete
loss of voice following the strangulation incident. Victims might have injuries caused by the
assailant, but also might exhibit injuries caused in self-defense (The Investigation and
T:2

Prosecution of Strangulation Cases, Training Institute on Strangulation Prevention & CDAA
71). Other symptoms that the victim may present with after strangulation include: difficulty
swallowing, raspy or difficult breathing, pain or tenderness in touch or movement, mental
status changes, redness of the neck, scratch marks, finger-tip or other bruises, petechiae (tiny
red spots caused by ruptured capillaries found anywhere above the area of constriction), red
eyes, neck swelling, or internal bleeding. If present, any of these symptoms should be
documented photographically to present as evidence in court if necessary.
During strangulation, the victim may involuntarily urinate or defecate, experience coughing
or vomiting, have vision changes, of suffer from a loss of consciousness. If a victim
references loss of memory, has an unexplained bump on the head, remembers waking up on
the floor, or experiences bowel or bladder incontinence, it may be a sign that she lost
consciousness during strangulation (McClane, Hawley, and Strack). Because many of these
symptoms may not be obvious indicators of strangulation, it is important to hold community
trainings to help better identify these signs.
Symptoms

Signs

Voice Changes
Loss of Voice

Redness of the Neck
Scratch Marks

Difficulty Swallowing

Bruises

Difficulty Breathing
Raspy Breathing
Pain or Tenderness

Fingertip Bruises
Petechiae (tiny red spots)
Blood Red Eyes (capillary
rupture)
Swelling of the Neck

Mental Status Changes
(restlessness,
combativeness, amnesia)
Involuntary
Urination/Defecation
Coughing/Vomiting
Vision Changes

Indicators of Loss of
Consciousness
Loss of Memory
Waking on the Floor after
Standing Previously
Unexplained Bump on the
Head
Urination/Defecation

C.How common is strangulation?
Almost half of all domestic violence homicide victims have experiences at least one episode
of strangulation prior to a lethal or near-lethal incident (The Investigation and Prosecution of
Strangulation Cases, Training Institute on Strangulation Prevention & CDAA 7). A survey
conducted by the Georgia Coalition Against Domestic Violence in 2014 revealed that 44% of
the 115 women surveyed had been strangled by an abusive partner (GCADV). Of those that
had indicated that they had been strangled, 80% indicated that it had occurred on more than
one occasion. Sixty-five percent of strangulation victims also expressed that they were more
afraid, intimidated, or changed their behavior due to a fear of another strangulation incident.

T:3

In addition, recent studies have shown that 34 percent of abused pregnant women report
being “choked” (The Investigation and Prosecution of Strangulation Cases, Training Institute
on Strangulation Prevention & CDAA 7). Finally, strangulation accounts for ten percent of
all violent deaths that occur each year (Paluch 11).
D.Why focus on strangulation?
Strangulation is unique among abusive tactics—most easily compared with sexual assault as
a demonstration of power and control. Literally, the victim’s life is in the abuser’s hands,
which sends a much different message than simple assault or battery. Not only can it cause
brain damage within seconds, but it can also have severe and lasting effects on the survivor’s
mental status, leading to restlessness, combativeness, psychosis, or amnesia. Many
strangulation survivors have also reported suffering from PTSD after the strangulation
incident. Yet despite the potential for serious injury or death, strangulation has been often
overlooked or minimized, and victims may not be aware of all the potential risks. And in
fact, those risks are not limited to the perpetrator’s intimate partner. A California study
found that 40% of people who have killed a police officer have a history of strangling their
intimate partner (Mariposa County Study with Law Enforcement Death).

E.Is strangulation a lethality factor?
Surviors of strangulation are seven times more likely to be killed by their abuser (Glass, et al.
330). Over 19% of cases reviewed by the Georgia DV Fatality Review between 2004 and
2012 had prior strangulation incidences (GCADV). Although little research has been
conducted about strangulation in the context of intimate partner violence, California experts
have suggested that strangulation is the cause of 20% of all domestic violence homicides
(“Background Information for a California Strangulation Statute” 2).
F.How is strangulation minimized?
Strangulation is minimized by survivors, abusers, and professionals. Victims minimize
strangulation because they may not understand it as an escalation in violence given the lack
of visible injuries. One way in which this is done is by using incorrect terminology.
Strangulation is not choking or suffocation. Choking is when the trachea is obstructed,
resulting in impeded breathing. Suffocation is when the flow of breathing is manually
obstructed by sealing off the nose and mouth or by placing pressure on the chest. In addition,
there is no such thing as “attempted strangulation” (The Investigation and Prosecution of
Strangulation Cases, Training Institute on Strangulation Prevention & CDAA 13); victims
can be non-fatally strangled. Because of the common public minimization of strangulation,
expert witnesses can be used to dispel myths about strangulation. Finally, a lack of
information on strangulation symptoms can lead to minimization by first responders who
may not recognize the less obvious signs of strangulation such as victim dizziness, urination,

T:4

or petechaie. However, community trainings on strangulation by task forces can help police
officers, EMTs, and advocates recognize these symptoms so that they can follow-up
appropriately.

A. G.How can strangulation be prosecuted?
Strangulation can be challenging to prosecute because in more than 50% of the cases there
are no physical signs of injury (The Investigation and Prosecution of Strangulation Cases,
Training Institute on Strangulation Prevention & CDAA 7). However, in 2014 the state of
Georgia became the 38th state to pass a bill to specifically criminalize strangulation (Georgia
Code § 16.5.21). Other states that have passed similar legislation have seen increased victim
safety, increased offender accountability, more attention given to the potential lethality of
strangulation, more resources delegated to strangulation prevention and awareness, and
increased public education on domestic violence (Laughlin).
In order to successfully prosecute, it is imperative that the case is more dependent on the
evidence than upon the testimony of the victim and to develop as much corroborating
evidence as possible (The Investigation and Prosecution of Strangulation Cases, Training
Institute on Strangulation Prevention & CDAA 39). Therefore, it’s very important to record
the victim’s injuries through photos, video and voice recordings, as well as follow-up
documentation to use for comparison. Medical examinations can also be beneficial in
prosecuting strangulation cases, but many times it may not be financially feasible for a victim
to seek out medical evidence of the strangulation, which typically involves costly tests. In
addition, like in many domestic violence cases, it is likely that the victim will change or even
recant testimony later. However, a solid investigation will allow the prosecution to proceed
without victim cooperation (The Investigation and Prosecution of Strangulation Cases,
Training Institute on Strangulation Prevention & CDAA 42).
H.What else can communities do?
Domestic Violence task forces are an effective way to ensure that communities are educated
on strangulation. By incorporating it into domestic violence-related police and EMT
trainings, first responders can be prepared to recognize the symptoms of strangulation. In
addition, expert witnesses should be trained for use in court proceedings. Finally, advocates
should support the passage of new legislation in order to criminalize strangulation in the
remaining state

T:5

U. APPENDIX U--GEORGIA CRIME VICTIMS BILL OF
RIGHTS
Table of Contents
A. Introduction……………………………………………………………………U:2
B. Statute………………………………………………………………………….U:2
C. VINE System…………………………………………………………………..U:3
D. Notification for Victims………………………………………………………..U:3

U:1

A.Introduction
The Georgia Crime Victims Bill of Rights, O.C.G.A. 17-17-1, etc seq.,
was enacted in 1995, and gives individuals who are the victims of certain
crimes, such as assault, battery, stalking, or sexual offenses, specific rights
under the law. It facilitates access to information about prosecutions or about
the offender to both the victim or family members of the victim. This access
can be particularly critical in cases involving domestic violence, sexual
violence, or stalking behavior.
In a domestic violence or stalking situation, a victim’s attempts to leave or
separate his or herself from the perpetrator can cause an escalation in
violence. (Georgia Domestic Violence Fatality Review, 2007-2014). Given
that, a victim’s willingness to report a perpetrator, or participate in his or her
prosecution, increases the potential for violent behavior. Notification of arrest,
release, court proceedings, or parole, can provide a victim with information
that allows him or her to safety plan, and prepare for the possible return of the
perpetrator into his or her life.
There are various structures in place to notify victims of changes in
offender status. First, the statute designates particular law enforcement or
criminal justice agencies to provide notifications to victims in the event of
arrest, proceedings in which release is considered, and release. Second,
several counties in Georgia have an online victim notification system,
VINELink. Victims are able to search for the offender, and register for e-mail
or phone notifications of changes in custody status.
B.Statute
O.C.G.A. 17-17-1 delineates a list of basic rights accorded to victims of specific
crimes. The rights include, but are not limited to, the following rights:
(1) The right to reasonable, accurate, and timely notice of any scheduled court
proceedings or any changes to such proceedings;
(2) The right to reasonable, accurate, and timely notice of arrest, release, or
escape of the accused;
(3) The right not to be excluded from any scheduled court proceedings, except as
provided in this chapter or as otherwise required by law;
(4) The right to be heard at any scheduled court proceedings involving the
release, plea, or sentencing of the accused;
(5) The right to file a written objection in any parole proceedings involving the
accused;

U:2

(6) The right to confer with the prosecuting attorney in any criminal prosecution
related to the victim;
(7) The right to restitution as provided by law;
(8) The right to proceedings free from unreasonable delay; and
(9) The right to be treated fairly and with dignity by all criminal justice agencies
involved in the case.
C.VINE System
Victims can access information through the National Victim Notification
Network, known as VINE (Victim Information and Notification Everyday). This
system allows crime victims to obtain updates about an offender’s status in a
timely and reliable way.
There is an online version available of VINE, known as VINELink, which can be
accessed at https://www.vinelink.com/vinelink/tiles2-multiple-sites-home.do
Georgia has limited use of VINELink services – the service is online available in
Clarke, Dekalb, Fulton, Cherokee, Gwinnett, Forsyth, and Cobb.. Victims and
their family members can access the website for the county in which the offender
is arrested, held, and tried, search by the offender’s name, and then register for
either phone or e-mail notifications to receive updates on the custody status of the
offender.
D.Notification for Victims
The statute designates that various “Criminal justice agencies” are responsible for
notifying the victim of an offender’s status dependent upon stages in the
proceeding. “Criminal justice agency” is defined in O.C.G.A. 17-17-3 as “an
arresting law enforcement agency, custodial authority, investigating law
enforcement agency, prosecuting attorney, or the State Board of Pardons and
Paroles.”
According to O.C.G.A. 17-17-7, the requirements are as follows:
(a) The investigating law enforcement agency will notify of the arrest of an
accused.
(b) The prosecuting attorney will notify of any proceeding in which the release of
the accused will be considered.
(c) The custodial authority will notify of the release of the accused.

U:3

RESOURCES
A.

State and National Resources

DOMESTIC VIOLENCE RESOURCES
STATE RESOURCES
Name of Organization

Website

Administrative Office of the Courts’
Georgia Commission on Interpreters
Court Appointed Special Advocates,
Inc. (CASA)
Criminal Justice Coordinating
Council

http://w2.georgiacourts.org/
coi/
http://www.gacasa.org/

Family Violence Intervention
Programs, State Certification

http://www.gcfv.org/index.p 404-657-3412
hp?option=com_content&vi 404-463-3808
ew=article&id=81&Itemid=
13

Georgia Association of Chiefs of
Police
Georgia Bureau of Investigation

http://www.gachiefs.com/

770-495-9650

gbi.georgia.gov/See
Appendix M, Section F

404-244-2600
404-270-8454

http://www.gcadv.org/

404-209-0280

http://www.gcfv.org/

404-657-3412

http://www.cscj.org/

404-656-4964

http://www.gcoa.org/

404-657-5343

Georgia Crime Victims
Compensation Program
Victim Services

http://cjcc.georgia.gov/victi
ms-compensation

Georgia Department of Corrections
Pardons and parole
Victim services
Georgia Domestic Violence Hotline
– Safe Haven

http://www.dcor.state.ga.us/

404-657-1956
1-800-547-0060
404-657-2222
800-547-0060
404-656-5651
800-593-9474

Georgia’s Protective Order Registry
Georgia Coalition Against Domestic
Violence
Georgia Commission on Family
Violence
Georgia Council of Superior Court
Judges
Georgia Council on Aging

Resources:1

http://cjcc.ga.gov/

Will provide local DV
resources

Telephone number

404-463-6478
800-251-4012
404-874-2888
404-657-1956

1-800-HAVEN
1-800-334-2836

DOMESTIC VIOLENCE RESOURCES
STATE RESOURCES
Name of Organization

Website

Telephone number

Georgia Public Defender Standards
Council
Georgia Legal Services

http://www.gpdsc.com

800-676-4432

http://www.glsp.org/

404-206-5175

Georgia Network to End Sexual
Assault
Georgia Office of Dispute
Resolution
Institute of Continuing Judicial
Education

http://www.gnesa.org/
http://www.godr.org/

404-815-5261
866-354-3672
404-463-3788

http://www.uga.edu/icje/

706-369-5842

Domestic Violence Benchbook
Institute on Human Development
and Disability, UGA
International Women’s House
(Shelter for battered immigrant and
refugee women and children)
Language Line Services
Prevent Child Abuse Georgia

Prosecuting Attorneys Council of
Georgia
-Atlanta (main)
-Albany
-Macon
-Savannah
Raksha Network for South Asians
Helpline
Tapestri Refugee and Immigrant
Coalition
-DV line Atlanta
-DV outside Atlanta
-Anti-Human Trafficking
-Outside Atlanta
U.S. Attorney’s Offices – Violence
Against Women Acts Contacts
-Northern District

http://icje.uga.edu/document
s/2010DVBenchbook.doc
http://www.ihdd.uga.edu/

706-542-3457

http://www.internationalwo
menshouse.org/

770-413-5557

http://www.languageline.co
m/
http://preventchildabusega.o
rg/

800-752-6096

http://www.pacga.com/

http://www.raksha.org/

404-870-6565
Help line
800-CHILDREN
404-969-4001
229-430-3818
478-751-6645
912-748-2843

http://www.tapestri.org/

1-866-752-7423
404-842-0725
404-299-2185
866-562-2873
404-299-0895
866-317-3733

http://www.usdoj.gov/usao/
gan/
http://www.usdoj.gov/usao/

404-581-6000
478-752-3511
229-430-7754

Resources:2

DOMESTIC VIOLENCE RESOURCES
STATE RESOURCES
Name of Organization

-Middle District
-Albany

Website

Telephone number

gam/

DOMESTIC VIOLENCE RESOURCES
NATIONAL RESOURCES
Name of Organization

ABA Commission on Domestic
Violence

Website

http://www.abanet.org/dom
viol/home.html

Telephone number

202-662-1000

This is the home page for the ABA
Commission on Domestic Violence.
It provides information for attorneys,
judges and other professionals who
work with the judicial system on
issues of domestic violence
American Judges Association
http://aja.ncsc.dni.us/domvi
ol/publications_domvioboo
The American Judges Association
klet.htm
and American Judges Foundation
have published an introductory
booklet for judges handling domestic
violence cases including an
overview of the literature and steps
judges can take in appropriately
handling cases.
National Center for the Prosecution of http://www.ndaa.org/ncpvaw 703-519-1687
Violence Against Women
_home.html
Communities Against Violence
http://cavnet.org/
305-896-3000
Network (CAVNET)
Online database of information and a
virtual international community of
over 900 professionals. Free public
access or more extensive access with
membership fee.
Family Violence Prevention Fund
http://nnedv.org/resources/na 415-252-8900
-San Francisco office
tionalorgs/9-fvpf.html
202-595-7382
-Washington DC office
617-262-5900

Resources:3

DOMESTIC VIOLENCE RESOURCES
NATIONAL RESOURCES
Name of Organization

Website

Telephone number

-Boston office
A comprehensive website for FV that
provides judges with groundbreaking
materials, online resources and
guidelines.
Legal Momentum
http://www.legalmomentum. 212-925-6635
-New York office
org/
202-326-0040
-Washington DC office
Works on a national policy level to
eradicate discrimination against
victims of violence
Minnesota Center Against Violence
and Abuse (MINCAVA)

http://www.mincava.umn.ed 612-624-0721
u

Located at the University of
Minnesota, this site is an electronic
clearinghouse providing access to
over 3000 resources.
National Center for Missing and
Exploited Children

http://www.missingkids.com 1-800-THE-LOST
/
703-224-2122

Can assist if there is a fear of child
abduction and steps necessary to
prevent kidnapping – interstate or
outside United States.
24 hr. hotline:
Office:
National Center for State Courts
-Williamsburg, VA
-Denver, CO
-Arlington, VA
-Washington, D.C.

http://www.ncsconline.org

800-616-6164
800-466-3063
800-532-0204
703-841-0200

This site includes the Family
Violence Forum, which provides
regular updates about approaches
taken by various courts in combating
family violence as well as many
research articles and a detailed
Resources:4

DOMESTIC VIOLENCE RESOURCES
NATIONAL RESOURCES
Name of Organization

Website

Telephone number

Resource Guide.

National Council of Juvenile and
Family Court Judges – Family
Violence Department

http://www.ncjfcj.org/

775-784-6012

Maintains a website providing
information and links to state laws
related to domestic violence for every
state. Also provides judicial DV
training & information about
firearms, full faith and credit and
other domestic violence issues.
National Criminal Justice Reference http://www.ncjrs.gov/spotlig
Service – Spotlight on Family
ht/family_violence/Summary
Violence
.html
Family violence facts, publications,
programs training and technical
assistance.
National Criminal Justice Reference
Service

http://www.ncjrs.gov/abstrac
tdb/search.asp

Research abstract data base on a wide
range of criminal justice research
housing more than 185,000
publications. Can subscribe to a
weekly electronic list of new
additions
National Domestic Violence Hotline http://www.ndvh.org/

1-800-799-7233

Provides callers with crisis
intervention, information about
domestic violence and referral to local
programs 24 hours a day, in both
English and Spanish. The Hotline
also has interpreters available to
translate an additional 139 languages.
National Immigration Project of the
http://www.nationalimmigrat 617-227-9727

Resources:5

DOMESTIC VIOLENCE RESOURCES
NATIONAL RESOURCES
Name of Organization

National Lawyers Guild
Protects the rights of non-citizen
survivors of domestic violence.
National Organization for Victim
Assistance
Provides information and training to
advocates working with crime
victims.
National Resource Center on
Domestic Violence
Stalking Resource Center
Information clearinghouse,
practitioners network and training.
United States Justice Department
Office on Violence Against Women

Website

Telephone number

ionproject.org/

http://www.trynova.org/

800-879-NOVA
703-535-NOVA

http://www.nrcdv.org/

800-537-2238

http://www.victimsofcrime.o 202-467-8700
rg/our-programs/stalkingresource-center
http://www.usdoj.gov/ovw/

This site provides information on
model programs, federal grant
programs and links to the most recent
statistical information on violence
against women, including physical
and sexual assault.
Vera Institute of Justice
http://www.vera.org
-New York office
-Washington DC
-New Orleans
This site includes information,
updates and downloadable resource
materials on judicial review hearings.
Can send for free documentary
“Judicial Review Hearings in
Domestic Violence Cases” or call
ICJE to borrow this short film.
Intimate Partner Sexual Abuse
http://www.njepipsacourse.org
This is an excellent online course
developed and written by the National

202-307-6026

212-334-1300
202-465-8900
504-593-0936

212-925-6635

Resources:6

DOMESTIC VIOLENCE RESOURCES
NATIONAL RESOURCES
Name of Organization

Judicial Education Program of Legal
Momentum. ICJE of Georgia will
accredit this course for Superior and
State Court Judges.

Resources:7

Website

Telephone number

B. State Resources in the LGBTQQI community:
Most Shelters can/will accommodate survivors from the LGBTQQI community.
If local area shelters will not accommodate these survivors, please contact United
4 Safety.

DOMESTIC VIOLENCE RESOURCES
LGBTQQI COMMUNITY RESOURCES
Name of Organization

United 4 Safety
Trained advocates to respond to
callers.
Training for community groups,
agencies, law enforcement, courts.
Referral resources for survivors/
batterers.
Atlanta Lesbian Health Initiative
Lesbian Batterers Group

Website

Telephone number

http://thehealthinitiative.org
/programsresources/programming/unit
ed4safety/
united4safety@gmail.com

404-688-2524

http://www.thehealthinitiati
ve.org/

(404) 688-2524
Fax
(404) 688-2638

info@thehealthinitiative.org

Resources:8

Resources:9

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CASE CITATION INDEX

A
Abrams v. State, common-law marriage, 5:36
Allen v. Allen, enforceability of settlement, 3:26
Allen v. Clerk, family violence, 4:2
Allen v. State, police observation, 5:3
Almond v. State, photographs of injuries, 5:3
Alvarado v. State, battered person syndrome, 5:41
Anderson v. Deas, personal jurisdiction, 2:1; stalking, 4:10
Apprendi v. New Jersey, prior conviction(s), 4:15-16
Arrington v. Arrington, child support, 3:28
Aycock v. Aycock, form of child support, 3:26

B
Babb v. State, lapse in time, 5:25
Babb v. State, prior difficulties, 5:24
Banks v. State, hearsay, 5:21
Barrow v. State, child support, 3:29
Bearden v. State, corporal punishment, 5:32; parental discipline, 4:1;
simple assault, 4:9
Beck v. State, spousal testimonial privilege, 5:34
Bell v. State, photographs of injuries, 5:2; prior difficulties, 5:26;
statements, 5:14;
witness as expert, 5:40
Benton v. State, family counseling, 4:16; incest, 4:7, lapse in time, 5:25;
limiting
instruction, 5:25; no contact with victim, 4:17; prior
difficulties, 5:24
Biggins v. State, aggravated battery, 4:3
Blazel v. Bradley, presumption of constitutionality, 1:14-15
Bogan v. State, affirmative showings, 5:23
Bowers v. State, battery, 4:11; cruelty to children, 4:4; parental discipline,
4:1
Boyd v. State, Evidence 5:13, Harmless Error 5:13, Right of Confrontation
5:13
Bradley v. State, contempt against petitioners, 3:41
Bragg v. State, aggravated stalking, 4:6
Brannon v. State, mutual combat, 5:28
Bridges v. State, murder, 4:2-3
Brooks v. State (1998), appeal bond, 4:24
Brooks v. State (2012), harmless error, 5:14

Case Citation Index:1

Brown v. State, hearsay evidence, 5:6 ; medical evidence, 5:7 ; prior acts,
5:24 ;
statements as evidence, 5:15
Bryan v. Bryan, awarding alimony, 3:15
Buchheit v. Stinson, corporal punishment, 4:1, 5:32 ; family violence,
2:15; reasonable
discipline, 1:8
Buice v. State, justification of self-defense, 5:27
Burk v. State, reckless conduct, 4:4

C
Cagle v. Davis, ex parte definition, 2:4
Caldwell v. State, officer as expert, 5:40
California v. Green, hearsay, 5:20
Camphor v. State, bonds, 4:24
Carlisle v. State, Stalking venue P:5
Carroll v. State, Georgia Court of Appeals conclusion, 2:2; child
visitation, 3:7; Civil Practice act, 3:32
Carter v. State, kidnapping, 4:4; medical reports; photographs of injuries,
5:2-3
Chambers v. State, home search, 4:20; statements as evidence, 5:19
Chapman v. State, battered woman syndrome, 5:29
Chester v. State, battered person syndrome, 5:29, 5:41
Childers v. State, jury selection, 5:44
Childs v. State, rape, 4:7
Clarke v. State, bonds, 4:25
Cobble v. State, battery, 4:10
Cobb v Cobb, military jurisdiction, 2:2
Collins v. Bazan, stalking, 1:14; stalking order, 3:21; threats and family’s
safety, 1:11
Collins v. Collins, child support, 3:29
Colorado v. Sullivan, Cyberstalking P:3, GPS P:3
Commonwealth v. Alphas, stalking statute, 1:15
Commonwealth v. Kwiatkowski, vague stalking statute, 1:15
Cooks v. State, no limiting instruction, 5:25; no notice required, 5:24
Cox v. State, battery, 4:10; criminal trespass, 4:11
Cranford v. State, waiver of error, 5:12-13
Crawford v. Washington, case citations, 5:11, 5:12-15; hearsay evidence,
5:4-5, 5:33
Crisp v. McGill, child custody, 3:28
Crowley v. Lilly, due process standards, 1:14
Culmer v. State, exception of evidence, 5:6
Cunningham v. State, prior acts, 5:25; prior difficulties, 5:24

D

Case Citation Index:2

Danzis v. State, abusive language, 5:32
Davidson v. Davidson, awarding alimony, 3:15
Davis v. Davis, findings of contempt 3:38-39, contempt sanction, 3:39
Davis-Redding v. Redding, venue, 2:1; family violence v. divorce cases,
3:26
Davis v. Washington, defendant’s misconduct, 5:20; 911 statements, 5:16;
statements
as evidence, 5:9-10, 5:15
Delgado v. Souders, freedom of travel, 1:15
Demons v. State, confession of crime, 5:2; hearsay statements as evidence,
5:15; mutual combat, 5:27-28
Dickson v. State, testimonial statement, 5:18
Dixon v. State, kidnapping, 4:4
Dixson v. State, prior acts, 5:24-25, 5:25
Duggan v. Duggan-Schlitz, “commence and continue” hearing, 2:11;
extension of
order, 3:33-34
Duitsman v. State, home search, 4:20

E
Early v. State, involuntary manslaughter, 4:3
Eich v. State, mutual combat, 5:28

F
Feder v. Evans-Feder, child’s residence, H:15
Floyd v. Floyd, contempt remedies, 3:39
Floyd v. State, juror’s state, 5:44
Fly v. State, stalking, 1:14
Flynt v. State, civil action v. criminal action, 3:29
Ford v. State, aggravated stalking, 4:6
Forde v. State, prior consistent statements, 5:7
Freeman v. State, affirmative showings, 5:23
Fuller v. State, voluntary manslaughter, 4:3

G
Gallit v. Buckley, contempt decree, 3:40
Gates v. State, aggravated stalking, 4:6
Gay v. Gay, incarceration, 3:42
Georgia v. Randolph, home search, 4:20
Gibbons v. State, evidence, 5:9
Gilbert v. State, aggravated assault, 4:3; free speech, 1:15; warrantless
arrest, 4:21
Giles v. State, designating judges 2:2; stalking protective orders, 1:9

Case Citation Index:3

Giles v. Calif., forfeiture exception, 5:20
Gillespie v. State, family violence, 4:2; insufficient evidence, 5:43
Ginn v. State, criminal trespass, 4:11; property damage, 4:8, 5:32; property
damage as criminal trespass, 1:6
Glisson v. State, privileges of witness, 5:37
Gooch v. State, criminal damage to property, 4:8
Graham v. State, battered person syndrome, 5:28
Gresham v. Edwards, preliminary hearings, 5:21
Griffin v. State, accident, 5:31; prior statement, 5:9; recanting statements,
5:10
Grogan v. State, Apprendi rule, 4:16

H
H.E.S. v. J.C.S., Cyberstalking P:5, Hidden Video Camera P:5
Hargraves v. Lewis, consent decree, 3:27
Hargrove v. State, kidnapping, 4:3-4; recusal of judge, 5:45
Harper v. State, scientific principles, 5:40
Harrison v. State, hearsay evidence, 5:6; necessity exception of evidence,
5:6; simple battery, 4:19; spousal testimonial privilege, 5:33
Hartley v. State, evidence, 5:9; no corroboration of evidence, 5:1
Hawks v. State, cycle of violence, 5:42; denial of abuse, 5:42;
minimization of abuse, 5:42; prior abuse, 5:26; prosecuting partner, 5:42;
torn clothing, 5:4
Hayes v. State, prior difficulties, 5:26
Helton v. State, martial communications privilege, 5:35
Henry v. State, similar transactions, 5:23
Herbert v. State, stalking, 3:44
Herring v. State, prior acts, 5:25
Hervey v. State, stalking, 3:44
Hester v. State, non-testimonial statements, 5:15
Huggins v. Boyd, Cyberstalking venue 2:1, P:5
Hight v. State, powers of arrest, 4:18
Holland v. State, arrests, 4:19; eyewitness testimony, 5:2; family violence,
4:2; police observations, 5:3; public altercation, 4:21
Holmes v. State, aggravated stalking, 4:6
Hood v. Carsten, revocation of bonds, 4:25
Howard v. Commissioners of the Sinking Fund of Louisville, military
jurisdiction, 2:2
Humphrey v. State, statements, 5:14

I
Igidi v. State, limiting instruction, 5:23
In re Paul, exceptions to priviledge, 5:38
In the Interest of D.O.R., termination of parental rights, O: 6

Case Citation Index:4

J
Jaffee v. Redmond, Confidentiality, Q:2-3, Q: 8, Federal extension of
Privilege Q:2-3 Q:8-9
James-Dickens v. Petit-Compere, contempt, 3:9
Johnson v. Cegielski, presumption of constitutionality, 1:14
Johnson v. State, aggravated battery, 4:3; battered person syndrome, 5:29
battery, 4:11; constitutionality of cyberstalking law P:3, property crimes,
4:8; reversing a conviction, 3:29; simple assault, 4:10; stalking, 1:14, 4:10;
terroristic threats, 4:8
Jones v. State, cycle of violence, 5:34; leaving abuser, 5:42; profile, 5:42;
prosecuting abuser, 5:43
Jones v. U.S., hearsay, 5:21

K
Kampf v. Kampf, due process standards, 1:15
Kaufman v. Kaufman, findings of contempt, 3:39
Kennestone Hosp. v. Hopson, exceptions to priviledge, 5:38
Kinney v. State, contempt of court, 4:13
Kirkley v. Dudra, language of civil statutes, 1:15
Kreitz v. Kreitz, language of civil statutes, 1:15

L
LaFaro v. Cahill, free speech, 1:15
Lamb v. State, affirmative showings, 5:22, 5:23
Lampley v. State, civil domestic violence statutes, free speech, 1:15
Lathan v. State, arson, 4:8
Lewis v. Lewis, timing, 1:8; fear 1:12
Lewis v. State, medical reports, 5:2; murder, 4:3;
Lipsey v. State, Confidentiality Q:8, Extension of Privilege Q:8
Loiten v. Loiten, service of petitions, 2:12
Lord v. State, aggravated assault, 4:3; entry without search warrant, 4:20
Louisyr v. State, stalking, 3:44

M
Mack v. State, property damage, 5:32
Mandt v. Lovell, termination/modification of protective orders, 3:34
Marquette v. Marquette, due process standards, 1:15
Marshall v. State, corporal punishment, 5:32
Mathews v. Eldridge, due process claims, 1:15
McCauley v. State, home search, 4:20
Case Citation Index:5

McClarity v. State, hearings, 5:22
McCracken v. State, family violence, 4:2; self-defense, 5:27; warrantless
arrest, 4:18, 4:19
McCullors v. State, hearings, 5:24; prior difficulty, 5:25
McPherson v. State, necessity exception of evidence, 5:6
McTaggert v. State, prior assault, 5:26
Miller v. State (2005), admission of physical altercation, 5:1; photographs
of injuries, 5:2; self-defense, 5:27; statements, 5:13; witness as expert,
5:40
Miller v. State (2011), necessity exception, 5:6; reversible error 5:13
Mims v. State, hearsay, 5:5; prior consistent statements, 5:8
Mize v. State, property damage, 5:3-4; weapons, 5:4
Moody v. State, interviews as evidence, 5:12; photographs of injuries, 5:2;
prior difficulties, 5:26; statements, 5:14
Moore v. Moore, due process, 1:15
Moorer v. State, battered person syndrome, 5:41; delayed reporting of
abuse, 5:42; expert’s qualifications, 5:40
Mozes v. Mozes, parents residence, H:15
Mullins v. State, police observations, 5:3; terroristic threats, 4:8
Murden v. State, “course of conduct,” 3:29

N
Nasworthy v. State, property damage, 5:4; torn clothing, 5:4; weapons, 5:4
New York v. Munn, Cyberstalking P:4, Internet Posts P:4
Newsome v. State, property damage as criminal trespass, 1:6; protection
order violation, 4:6; aggravated stalking, 4:12
Nollet v. Justices of the Trial Court, due process, 1:15
Nguyen v. Dinh, permanent order, 3:33
Nguyen v. State, battered person syndrome, 5:28
Nicholson v. Williams, Children O:2, O:3

O
Oliver v. State, stalking, 3:44
Orr v. State, res gestae, 5:10

P
Park v. State, excuses for cause, 5:44
Payne v. State, medical evidence, 5:7
Pavesich v. New England Life Insurance Co., Confidentiality, Right to
Privacy, Q:3, Q:9People v. Blackwood, free speech, 1:15
People v. Stuart, civil statutes, 1:15
People v. Whitfield, language of civil statutes, 1:15

Case Citation Index:6

Perdue v. State, aggravated child molestation, 4:7; child molestation, 4:7
Peters-Riemers v. Riemers, due process standards, 1:14
Peterson v. State, blood splatter, 5:1; prima facie showing, 5:31
Pickle v. State, battered person syndrome, 5:43, maltreatment of children,
O:5
Pilcher v. Stribling, evidence of stalking, 1:12
Pirkle v. State, marital communications privilege, 5:35
Pitts v. State, cross-examination, 5:19; false imprisonment, 4:4;
911 Statements, 5:16; simple battery, 4:8; statements as evidence, 5:12

Q
Quick v. State, arrest, 4:18

R
Randolph v. State, home search, 4:20
Rawcliffe v. Rawcliffe, federal firearms, E:5; stalking, 3:22;
Raymond v. State, reporting abuse, 5:42
Remsburg, Administratrix for the Estate of Amy Boyer v. Docusearch Inc.,
Cyberstalking P:4, Website P:4
Revere v. State, aggravated stalking, 4:6
Reynolds v. Kresge, extension of protective orders, 3:33
Rice v. State, cross-examination, 5:18
Rigo v. State, battery, 4:10
Roberson v. State, medical evidence, 5:7
Robinson v. State, Confrontation Clause, 5:17, 5:18
Rodriguez v. State, prior offenses, 5:21
Rogers v. Rogers, enforceability of settlement, 3:26
Ryan v. State, affirmative showings, 5:23

S
Salter v. Greene, contempt against petitioners, 3:40; contempt of court,
4:13
Sanders v. Shepard, due process standards, 1:15
Sanford v. State, Evidence 5:17, Dying Declarations 5:17
Schmidt v. Schmidt, award of attorney’s fees, 3:21; civil contempt, 3:41;
contempt of court, 4:12-13
Scott v. Butler et al, unemployment, R:6
Scramek v. Bohren, free speech, 1:15
Senior v. State, arson, 4:8
Shaw v. State, criminal intent, 5:4; warrantless home search, 4:20; police
observations, 5:3; simple battery, 4:9; warrantless arrest, 4:19
Siharath v. State, expert’s qualifications, 5:40

Case Citation Index:7

Simmons v. State, battery, 4:9; no corroboration of evidence, 5:1; prior
inconsistent statements, 5:9
Simpson v. State, eyewitness evidence, 5:2; victim’s cooperation, 5:44
Smith v. State, affirmative showings, 5:22; battered person syndrome,
5:29; Jury Charge, 5:29; necessity exception, 5:5; spousal testimonial
privilege, 5:34
Southern v. State, battery, 4:9
Spinner v. State, Apprendi rule, 4:16; battery, 4:10; prior conviction, 4:15
Stanton v. Stanton, child custody, 3:30
Starr v. State, cross-examination, 5:18
State v. Barnett, family violence, 4:2, 5:43; felony, 5:43
State v. Burke, protective orders, violation, aggravated stalking, 3:43, 4:5
State v. Dean, prior battery conviction, 4:15, 4:16
State v. Driggers, warrantless entry, 4:21
State v. Kidder, language of civil statutes, 1:15
State v. Peters, spousal testimonial privilege, 5:33
State v. Sarlund, language of civil statutes, 1:15
State v. Swint, materiality of date, 5:43
State v. Tousley, expert testimony, 5:41; scientific procedures, 5:40
State v. Tripp, language of civil statutes, 1:15
State v. Yapo, immunity from prosecution, 5:27
Steelman v. Fowler, petitions, 2:12

T
Talley v. State, prior acts, 5:23; stay away provisions, 4:17
Tammy S. v. Albert S., military jurisdiction, 2:2
Tanks v. State, contempt of court, 4:12; double jeopardy, 3:40
Taylor v. State, parental discipline, 4:1
Temple v. State, aggravated sexual battery, 4:7
Thomas v. State, 911 calls, 5:16; prior abuse, 5:24
Thompson v. State, battery, 4:9; non-testimonial statements, 5:16; res
gestae, 5:10
Trammel v. U.S., Confidentiality Q:8,

U
U.S. v. Griffith, Georgia battery stature, E:10
U.S. v. Ventresca, criminal trial, 5:21

V
Vaughn v. State, admissibility of scientific principles, 5:40

W
Warren v. State, aggravated sodomy, 4:7; rape, 4:7
Walton v. State, statements, 5:13, 5:17
Watkins v. State, recanting statements, 5:10; simple battery, 4:9
Case Citation Index:8

Webb v. State, marital communications privilege, 5:35
White v. Regions Bank, exceptions to priviledge, 5:38
White v. State, marital communications privilege, 5:33; spousal
testimonial privilege, 5:36
Wilbourne v. State, res gestae, 5:10
Wiles v. Wiles, Confidentiality Q:3, Q:7, Extension of Privilege Q:3, Q:7
Williams v. Jones, counter petitions, 2:13; restraining the petitioner, 3:4
Wilkerson v. State, Waiver of Error 5:12, Right of Confrontation 5:12
Williams v. Marsh, due process, 1:15
Williams v. State, prior violent acts, 5:30; three affirmative showings,
5:22; written notice, 5:30
Williams v. Stepler, family violence order as final order, 2:15
Willmon v. Daniel, due process, 1:15
Wood v. State, elderly cruelty, 4:6
Woods v. State, prior acts, 5:24
Wright v. State, aggravated stalking, 4:5; arrest without warrant, 4:18;
harmless error,
5:14; necessity exception, 5:6; testimonial statements, 5:12

Y
Yearwood v. State, cruelty to children, 4:4

Case Citation Index:9

GLOSSARY
ABA
ADA
ADR
AIDS
AOC’s
AVLF

American Bar Association
Americans with Disabilities Act
Alternative Dispute Resolution
Acquired Immune Deficiency Syndrome
Administrative Office of the Courts
Atlanta Volunteer Lawyers Foundation

CASA
CIMT

Court Appointed Special Advocates
Crime Involving Moral Turpitude

DHS
Department of Homeland Security
DHR
Department of Human Resources
DSM-IV Lite Diagnostical and Statistical Manual

EAD
ECT

Employment Authorization Document
Electroconvulsive Therapy

FOIA
FVB
FVIP
FVPSA

Freedom of Information Act
Family Violence Battery
Family Violence Intervention Programs
Family Violence Protection and Services Act

GAD
GAIN
GAL
GCFV
GCIC
GDC
GDC's
GPOR

Generalized Anxiety Disorder
Georgia Asylum and Immigration Network
Guardian Ad Litem
Georgia Commission on Family Violence
Georgia Crime Information Center
Georgia Department of Corrections
Georgia Designated Courts
Georgia Protective Order Registry

HUD

Housing and Urban Development

ICARA
ICE

International Child Abduction Remedies Act
Immigration and Customs Enforcement

Glossary:1

IIRAIRA
IPV
IT

Illegal Immigration Reform and Immigrant Responsibility
Act
Intimate Partner Violence
Intimate Terrorism

LEP

Limited English Proficiency

LGBTQQI
LPR

Lesbian Gay Bisexual Transexual Questioning Queer
Intersex
Lawful Permanent Resident

MCDV
MVC

Misdemeanor Crimes of Domestic Violence
Mutual Violent Control

NCIC
NCJFCJ
NCSC
NICS

National Crime Information Center Network
National Council of Juvenile and Family Court Judges
National Center for State Courts
National Instant Criminal Background Check System

O.C.G.A.

Official Code of Georgia Annotated

PAS
POR

Parental Alienation Syndrome
Protective Order Registry

SCV
SIJS
STOP

Situational Couple Violence
Special Immigration Juvenile Status
Grant Services Training Officers Prosecutors
Violence Against Women Formula Grant Program (STOP
Program)

TPO
TPS
TVPRA

Temporary Protective Order
Temporary Protected Status
Trafficking Victims Protection Reauthorization Act of 2008

U.S.C.A.
USCIS

United States Code Annotated
United States Citizenship and Immigration Services

VAWA

Violence Against Women Act

Glossary:2

VINE
VWAP
VR

Victim Information and Notification Everyday
Victim Witness Assistance Program
Violent Resistance

Glossary:3

INDEX

References in italics denote forms or resources.
Acronym definitions are listed in the glossary.

A B C D E F G H I J K L M N O P Q R S T U V W
Z

Numerics
911
cases involving, 5:16
Georgia Protective Order
Registry and, 3:37
protection order and, F:1
A
absent parties, 2:15
abuse generally, A:6-9
behaviors as, K:8
children and, O:1-5
history of violence and, A:11,
B:4
immigrants, refugees and, H:9
prior, 5:24-25
self defense and, 5:25-27
substance, I:17-19
types of, A:6-9
victims and, A:11
women and, B:3-6
abusers generally, A:3-4, B:2
alcohol, drugs and, B:5-6
controlling, B:5
guns and threats by, B:4
immigrants, refugees as, H:6-7,
H:12-13
unemployment and, B:5
violence and, B:3-5
abusive language, 5:30
accident, 5:30
Adams, D., G:3
Adkins, Mary, K:5, K:6
Administrative Office of the Courts,
Research Division, M 2
advocate
ex parte applicants and, 2:4,
D:2
mediation and, K:14
prevention and, B:7
affidavits, 3:8
agencies, M:3
aggravated
assault, 1:4, 4:3, 4:15
battery, 4:3, 4:16
child molestation, 4:8
felony, H:8-9
sexual battery, 4:8
sodomy, 4:8
stalking, 4:5, 4:24
aggravated stalking cases, 4:5-6
agreements, 3:27-29
Aiken, J., 3:5-6

alcohol generally, 3:7, B:5-6, I:17
abuse and, A:9
alcoholism, I:6, I:17
Aldarondo, E., I:3, I:4
alimony
child support and, 3:8
Georgia’s statutes and, 3:14
payments as, N:4
Alternative Dispute Resolution, K:8, K:1012
AMEND Workbook for Ending
Violent Behavior, A:7
American Bar Association, 3:5
American Psychiatric Association, I:3, I:31
American Psychiatric Glossary, I:3, I:31
American Psychological Association, 3:5,
I:3, N:2
ammunition. See firearms
anger counseling, 3:17
Anger Management Programs, G:2
anger management programs, 3:17-18, G:2
arrests, 4:19-21
arson, 4:9
Ascione, F.R., B:4, B:5
assault, 1:13
Assista, H:22
asylees, H:4, H:12
Athens-Clarke County, E:4
attorneys
children and, J:7-8
contempt officers as, G:5-6
ex parte applicants and, D:1
attorneys fees, 2:3-4, 3:20-21
B
Babcock, J., A:4
bail, 4:22-24
battered person syndrome
generally, 5:27-29
case offenses as, 5:38
battered women, K:16
See also abuse; victim; violence
batterers, A:3-4 K:16
causes and, A:4
children and, 3:4-5, K:17, N:23, O:1-6
courts and, C:1, K:17
family violence intervention
program and, 3:18
firearms and, E:8
immigrant victims and, 4:23,
H:1-20
joint legal custody and, K:18
mediation and, K:16

Index:1

parental rights and, J:2
See also abusers
batterer’s intervention program
guardian ad litem and, J:2
See also family violence
intervention programs
battery generally, 1:4, 1:13, 4:15
case offenses as, 4:10-11, 4:16
statute, E:11
beat, 4:1
Beck, Connie, A:10, K:3, K:6
Beggs, Daryl, M:4
Bhattachatyya, Aparna, H:23
Black’s Law Dictionary, 2:4
Bond, S., A:5
bond, 4:22-25
Bowermaster, J., 3:5
Brady Gun Act, 3:22
Bridges, F.S., 1:2, E:4
Brigner, Mike, viii
Browne, Angela, 5:28
Bruch, Carols, N:2
bruise, 4:1
burden of proof, 2:14, 3:16, 3:23, 3:42
Bureau of Alcohol, Tobacco and
Firearms, E:10
Bureau of Justice Statistics, 3:5
Bureau of Justice Statistics Crime
Data Brief, 1:3
Bureau of Labor Statistics, 1:12
C
Caminar Latino, Inc., H:21
Campbell, Jacquelyn C., generally, A:11,
B:5
Danger Assessment Study and,
A:11
firearms and, 3:3, E:8, E:14
homicide and, 2:4, B:5
service on respondent and, 2:12
Carlson, B.E., 1:3
Carney, M., A:5
Carpiano, Richard M., 1:7
Catholic Charities, H:21
Center for Pan Asian Community Services,
H:21
Centers for Disease Control and
Prevention, 1:12-13
certified programs, 3:18
child custody generally, 3:28
attorney for child and, J:7-8
guardian ad litem and, J:2-7
settlement agreement and, 3:28
waivers and, 3:30
child molestation, 4:8
children generally, 3:4-9
agreements regarding, N:2-3
ex parte applicants and, D:1-2
family violence orders and, 3:49
Georgia Protective Order
Registry and, M:2-4
guardian ad litem and, J:2-8
immigrant status and, H:11-12
mediation and, K:16-20
supervised visitation and, N:4
telephone contact, N:5
child support generally, 2:12
contempt remedies and, 3:40
family violence orders and, 3:89
payments and, 3:8, K:19, N:56,
petitions and, 3:8
settlement agreement and, 3:28
waivers and, 3:29-30
circuits, G:4
civil cases
firearms in, E:3-8

Georgia Protective Order
Registry and, M:1-4
civil contempt, 4:12
Civil Practice Act, 2:2-3, 2:11-12
civil protection orders, 1:1
civil protective orders generally, 1:1
safety for families and, 1:1-15
statutes and, 1:2-15
Civil Rights Act, H:16
coercive control, A:9
cohabitation generally, 1:2, E:3
common law marriages, 5:34
communications, Q:9
compliance, 3:19-20
Computer Systems Protection Act, 1:10
conduct, 1:5
confidentiality generally, Q:2-3
advocates and, Q:6-8
communications, Q:2, Q:5-7
federal statutes, Q:2-3
model statutes, Q:4,
shelter, Q:2-7
See also privilege
confrontation clause, 5:10-21
consent, 3:27-29
Constitution, 1:14
contact,
limiting, D:1
telephone, N:5
temporary protective order
violation and, G:5
contempt generally, 3:9, 3:39-42
contempt of court cases, 4:14
control, A:1-9, B:5, K:8
convictions
Family Violence Act and, 4:1718
foreign nationals and, H:7-8
Cordova, Vidal, H:23
corporal punishment, 4:1
case offenses as, 5:31
counter petition, 2:12
counseling, 3:15-20, 4:25
county lines, M:3
course of conduct, 1:10, 1:14, 3:29
Court Appointed Special Advocates, N:2
court awareness, J:2-4
court clerks, 2:4, J:4
Court of Appeals
attorney fees and, 3:20
contempt and, 3:41
custody, visitation and, 3:8
court officers, G:5
court orders, 3:23
Court Review, C:1, G:4
court services, A:10
credible threat of violence, 1:13
Crime Involving Moral Turpitude, H:8
crimes generally, 4:2-13
bail, bond and, 4:22-25
family violence, 4:1-2
felony, 4:2-8
miscellaneous, 4:12-13
misdemeanor, 4:9-11
proof of intent to commit, 5:4
Crimes Against Persons Ages 65 and Older,
1:4, 4:7
Crime Victims Bill of Rights, U:2-3
statute, U:2
VINE System and, U:3
criminal cases
Georgia Protective Order
Registry and, M:2-4
mediation and, K:7
criminal contempt, 3:41-42
criminal offenses, 1:4-6, F:1
criminal trespass, 1:6, 4:1
cruelty
children and, 4:5
elderly and, 4:7

Index:2

Cunningham, et.al., A:5
custody generally, 3:5-6, N:3
disputes, 3:17
joint, 3:5, J:3-8
mediation and, K:17-19
order, 3:5
parents and, J:3, K:18, N:3
rights, H:11-12
cyberstalking generally, P:2
internet resources, P:5
stalking laws, P:3
technology, P:3
venue, P:7
D
Danger Assessment Study, A:11, B:3
Davies, B., K:3
DeBecker, Gavin, B:2
DeKeseredy, Walter S., A:7
Department of Corrections, 3:17, 3:38
Department of Family and
Children Services, D:1, J:4
Department of Homeland Security, H:17,
H:18
Depner, Charlene, K:3
deportation, H:3, H:6, H:7-8
deputy sheriffs, 3:37
Diagnostic and Statistical
Manual – IV Lite, I:3-29
discipline, 1:8, 4:1
disorders, D:2
See also mental health
dispatchers, 3:37
divorce, 1:15-16, 3:28, 3:30-31, N:2
domestic relations
allegations and, 3:30-31
cases, N:2-5
mediation and, K:9
violence and, 1:3, E:8
Domestic Violence Task Force, A:13, G:5-6
Domestic Violence Courts, S:1-5
double jeopardy, 3:40
drugs, B:5-6
due process, 1:14-15
Duhart, Delis T., 1:12
Durose, Matthew, K:5
Dutton, D., A:4
DVD’s and videos, G:5
E
emotion, K:8
emotional abuse, 1:7, A:8
employee, 1:13, 2:15
employer protective orders
duration of, 3:32
employee and, 1:12-13, 2:15
enforcement of, 3:35
extensions for, 3:34
jurisdiction for, 2:1
remedies for, 3:1, 3:22-23
service of orders for, 3:32
employer protective order statute
generally 2:3
petitioner and, 3:23
employer restraining order, 2:14
Employment Authorization Document, H:5
enforcement of orders, 3:19-20
Ethical Standards for Neutrals, K:12
Evaluators, 1:2, N:2
evidence
admissible, 5:1-9
blood as, 5:1
Confrontation Clause and,
5:10-21
corroboration of, 5:1-4
eyewitness testimony as, 5:2
hearsay as, 5:4-19
medical, 5:6
necessity exemption of, 5:5

proof of intent as, 5:4
statements as, 5:10-20
ex parte applicants generally, D:1-2
ex parte hearing, 2:6-7
ex parte orders generally, 2:4-7
firearms and, 3:4
gun restrictions and, E:4
outside of Georgia and, 3:38
experts, 5:37-41
F
false imprisonment, 4:4
family problem resolution, 3:17
family violence
acts of, 4:1-2
arrests and, 4:19
children and, J:2-8
discipline as, 4:1
fear and, 1:8
guardian ad litem and, J:2-8
homicide rates and, 1:2
information sheet for, F:1
family violence
interpreters for, H: 16
intervention programs and,
3:17-19
law and, 3:24-25
mediation and, 3:17, K:2-15
mental health and, I:3-4
protection and, 1:8-9
public altercation and, 4:22
orders and, 3:18-19
remedies and, 3:23-27
report and, 4:21
respondent visitation and, 3:6-8
siblings and, 4:17
temporary protective orders
and, G:4-5
Family Violence Act
attorney’s fees and, 3:20
counterclaim and, 2:14
court authority and, 3:13
criminal law and, 4:1-2
divorce and, 1:15-16
felony crimes and, 4:2-8
mediation and, K:9
mutual protective order and,
2:13
property and, 3:9-15
screening and, K:10-12
Sixth Amendment Right and,
4:17
stalking and, 3:22-23
standard of review and, 3:21
Family Violence and Stalking Protective
Order Registry Act, L:1
family violence forms, L:1
Family Violence Intervention Programs, G:1
family violence intervention programs
certification manager, G:3
web address for, G:6
family violence orders
counseling for, 3:15-16
custody in, 3:5-6
misdemeanor offense and, 3:2
violation of, 4:12
family violence petition, 2:3-4, 3:8-9
family violence protective orders
generally 1:2-8, 2:5-6, 2:14
contempt, 3:39-42
criminal violation and, 3:42-43
duration of, 3:32-33
enforcement of, 3:35
extension of, 3:33-34
registry of, 4:13
remedies for, 3:1
service of orders for, 3:31-32
family violence registry, 4:13
family violence shelter, 4:13

Index:3

fear generally, 1:8, 1:11
panic disorder and, I:9-11
Federal Firearms Law, E:3
federal laws
firearms and, 3:3, E:3-13
offenses and, E:9
fees
court awarded, 3:20-21
interpreters and, H:16
felony generally, 1:4
aggravated stalking as, G:5
crimes as, 4:2-8
murder as, 4:2-3
females, 1:3
Fields, Marjory, N:2
finances, K:19, N:5-6
fines, 3:41
financial affidavit, 2:3-4
firearms generally, E:3-13
availability of, 1:2, B:2, B:4,
B:7, E:4
bond and, 4:22
Brady Gun Act, 3:22
consequences and, 4:19
deportation and, H:7-9
divorce action restraining
orders and, 1:16
ex parte orders and, 2:5
Family Violence Act and, 3:2-4
federal prohibitions and, E:9-10
Form A, E:17
Form B, E:19
Form C, E:21
Form D, E:24
Form E, E:27
form list, E:16
military and law enforcement
and, E:6
protection orders and, 1:2, B:7,
E:3-8
restrictions and, E:7, E:9-13
safety and, E:8
statistics and, E:14
threats to kill and, B:2-3, B:4
first offenses, 4:14
Flitcraft, Anne J., 1:7
foreign nationals, H:3-22
forms
family violence, L:1
Georgia orders and, 3:38
registry and, M:3
superior court and, 2:4
Uniform Forms, L:1
Frattaroli, Shannon, E:8, E:14
Freedom of Information Act, H:6
free speech, 1:15
G
Gelles, Richard, O:4
Georgia Asylum and Immigration
Network, H:22
Georgia Attorney General, 2:2
Georgia Bureau of Investigation, 4:21
Georgia Coalition Against
Domestic Violence, K:2, K:16
Georgia Commission on Dispute
Resolution, 3:30, K:2-6, K:11
Georgia Commission on Family
Violence, 3:35
mediation and, K:2, K:16
protocol and, G:4
telephone number for, G:5
Georgia Court of Appeals, 2:2, 3:22, 3:41,
5:37
Georgia Crime Information
Center, 3:35, L:1, M:2-4
Georgia Criminial Justice Coordinating
Counsel, E:12

Georgia Domestic Violence Fatality Review
Project
deaths with firearms and, B:2,
B:4, E:8
study cases and, B:3-5
victims and, B:4
Georgia Family Violence Act, E:4
Georgia Office of Dispute Resolution, K:9
Georgia Protective Order Registry, 3:35-37,
M:1-4
protection orders and, G:5
web access to, 3:37
Georgia’s Clerk of Superior Court, G:4
Georgia Rule of Professional Conduct, J:8
Georgia Security and Immigration
Compliance Act, H:17
Georgia Superior Court Clerks’
Cooperative Authority, 3:36,
L:1
Georgia Supreme Court generally, 1:12,
1:14
battered person syndrome and,
5:28
three affirmative showings and,
5:21
Gondolf, Edward W., 3:18
Gottlieb, M., G:3
government employees, E:9
green card, H:3, H:6
guardians ad litem generally, J:1-8
Gun Control Act of 1968, 4:19
guns, 3:2-3, 4:23, B:2, B:4, B:7
See also firearms and weapons
H
Hague Convention, H:13
harassing, 1:5, 1:10
hearings, 2:6-12
judicial compliance, G:5
pre-hearing process and, 2:11
similar transactions and, 5:2023
hearsay
cases, hearings citing, 5:4-9
evidence as, 5:4
Herman, Judith Lewis
abused parties and, D:2
fear and, 1:9, 1:12
psychological abuse and, 1:7
repeat petitioners and, 2:5
Herrell, Adele, G:4
Holt, V.H.
two week orders and, 1:1, 2:17,
3:32
Holtzworth-Munroe & Stuart, A:4
homicides
domestic, E:8
estrangement and, 2:4, B:3, B:5
intimate partner, B:2-7
jobs and, 1:12, B:5
prevention of, B:2, B:6-7
stalking and, B:5
See also family violence
Housing and Urban Development, 3:12
Hunter, Nancy
brain development and, 3:5
fear and, 1:9
petitioner and, 1:12
psychological abuse and, 1:7
I
IIRAIRA, H:19
immigrants generally, 2:16, H:3-21
arrests and, H:8
battered women and, H:9, H:17
batterer and victim as, H:16-18
(USCIS) Citizenship and
Immigration Services H:3-7

Index:4

deportation and, H:7-8
Form I-918 and, H:11
Georgia Security and
Immigration Compliance Act,
H:17
Hague Convention and, H:1415
Illegal Immigration Reform and
Enforcement Act, H:13
international kidnapping and,
H: 14
interpreters for, H:16
National Center for Missing
and Exploited Children and,
H:15
Resources for Battered Refugee
and Immigrant Women in
Georgia, H:20-21
sentencing and, H: 9
undocumented, H:6, H:11
visas and, H:9, H:5
work and, H:7
immmigration, H:3-4
immigration attorney, H:16
immigration laws, H:3-22
incarceration, 3:41
incest, 4:8
Income Deduction Order, N:5
I-94 and non-immigrants, H:5-6
in judicio, 3:29
injury, 4:25
In Re Harvey, 3:40
Institute of Continuing Judicial Education,
G:5
International Child Abduction Remedies
Act, H:14
International Women’s House, H:21
interpreters generally, 2:16
foreign language and, H:15
intervention programs generally, 3:15-20
batterer and, 3:15-20
mandatory family violence and,
4:18
waivers and, 3:30
intimidation, 1:7, 3:17-18, A:2-8, K:8
intimate partners generally, B:2
Brady Gun Act, 3:22
definition of violence and, K:8
guns and, 4:23
violence, 1:3, B:2-7, I:3-4
Intimate Partner Violence, N:2
Intimate terrorism, A:5
investigations and ex parte applicants, D:1
involuntary manslaughter, 4:3
isolation, K:8
Iyer, Sunita, H:23
J
Jaffe, Peter, 3:5
jealousy, A:7
Jewish Family and Career Services, H:21
Johnson, M., A:2, A:3, A:5, K:5
joint counseling, 3:16-17
joint custody, 3:5, J:3, N:3
Journal of Emergency Medicine, 4:10
judges generally, A:10-12
bail and, 4:22-25
Georgia Protective Order
Registry Website for, M:4
guardian ad litem and, J:3-7
juvenile court, 3:25, H:11, J:4
juvenile immigrants and, H:11
mediation and, K:17-19
protection order and, F:1
Judicial Compliance Hearings, S:1-6
K
Karnani, Nisha, H:23

Karr-Morse, Robin, 3:5
Keilitz, Susan L., 1:1
Khant, Monica M., H:23
kidnapping, 1:6, 4:4, H:14-15
King, Mary, M:4
Klugman-Rabb, Jodi, O:5
Kunce-Field, Julie, G:4
Kyriacou, D., A:4
L
law enforcement officers
ex parte applicants and, D:1
forms and, M:3
Georgia Protective Order
Registry and, 3:37, M:3
protective orders and, G:4
Lawful Permanent Resident, H:3-4
lay advocate, 2:4
Legal Momentum Immigrant Women
Program, H:20
lethality factors generally, A:9-10, B:2-7
alcohol and, B:5-6
depression and, B:5
drugs and, B:5-6
efforts to leave and, B:5
guns and, B:4
harassment, B:5
increase in violent attacks and,
B:4
indicators as, B:2, B:5
practical application, B:2, B:67
strangulation and, B:3
suicide and, B:5
threats to kill and, B:4
unemployment, B:5
Levey, Lynn S., 1:3
limited contact orders, 3:2
Limited English Proficiency, H:16
links, 3:37
local victim assistance funds, 2:16
Logan, T.K., 1:1, 1:9
Loughlin, Greg, G:5
Lumpkin County, E:4
M
Mathis, Richard D., 3:5
McAlister-Groves, Betsy, O:4, O:6
McGrath, Kerry, H:23
mediation generally, 3:30-31, K:2-15
guidelines for, 3:17
improvements to, K:5-6
mediators, K:2-19
screening for, K:10-12
medical report cases, 5:2
medication, D:2, I:3-4, I:25-30
Meloy, J. Reid, 1:8
Mental Health Professionals generally, I:3,
J:5, N:2,
evaluators as, I:3-4
mental illness generally, I:3-30
Acquired Immune Deficiency
Syndrome and, I:16
alcoholism and, I:17-19
Alzheimer’s disease and, I:1617
anorexia nervosa, I:19-20
anxiety disorders and, I:8-13
biological clock disorders and,
I:22
bipolar disorder and, I:7-8
bulimia and, I:20-21
court evaluations and, I:3
dementia and, I:15-17
depression and, I:5-7
eating disorders and, I:19-21
electroconvulsive therapy and,
I:7

Index:5

P
mental illness (continued)
generalized anxiety disorder
and, I:9
hypersomnia and, I:22
insomnia and, I:21
lithium and, I:8
manic-depressive illness and,
I:7-8
medications used in psychiatry
and, I:25-29
mental health professionals
chart and, I:32
mood disorders and, I:4-8
obesity and, I:20-21
obsessive-compulsive disorder
and, I:11-13
panic disorder, I:9-11
paraphilia and, I:23-24
parasomnias and, I:22
schizophrenia and, I:13-15
seasonal affective disorders
and, I:7
sexual disorders and, I:22-24
sexual dysfunctions and, I:23
sleep disorders and, I:21-22
substance abuseand, I:17-19
military jurisdiction, 2:2
Mills, Linda, A:2, A:12
minors, 3:4-9
misdemeanor crimes generally, 4:8-11, E:11
bail and, 4:24
battery as, 4:14
contact violation as, G:5
federal firearms prohibitions
and, E:9
Misdemeanor Crimes of Domestic
Violence, 4:9-11, E:9
monitoring, G:4-7
motions, 2:13
murder, 4:2-3, B:2-6
N
National Center for Missing and Exploited
Children, H:22
National Center for Missing and
Exploited Children, H:15
National Center for State Courts, 1:1
National Council of Juvenile and
Family Court Judges, G:4
Model Code, 3:5
National Crime Information
Center Network, 3:35, M:2-3
database and, L:1
protection orders and, 3:36,
3:38, L:1
National Instant Criminal Background
Check System, E:7
Nolo contendere, 4:16, E:11
no-contact orders, 3:1-2
noncompliance
consequences for, G:4
orders and, 3:19-20
Noncompliance Notification and Show
Cause Order Form, G:6
Non-immigrant, H:2-3
non-resident respondent, 2:1
notices, 5:20
O
orders
duration of, 3:32-34
enforcement of, 3:19-20
forms for, 3:38
language and, E:6-7
service of, 3:31-32
Orloff, Lesley E., 1:3

Parental Alienation Syndrome, N:2
Perpetrators, A:3-4
personal jurisdiction, 2:1
personal property, 3:13-14
persons
felonies against, 4:2-8
misdemeanors against, 4:9-11
Petition for Citation of Contempt, N:5
petitioners
contempt and, 3:41
court and, 2:4-5, 3:6
employer protective order and,
1:12-14, 3:23
ex parte relief and, 2:4-7
family violence order
and, 1:2, 1:8, 3:24-25
fees for, 2:4, H:17
financial affidavit and, 2:3-4
forms for, 2:4
Georgia Protective Order
Registry and, M:2-3
Hague Convention and,
H:14-15
hearings and, 2:15
joint counseling and, 3:16-17
military and, 2:2
payment of money and, 2:3-4
protection order information
sheet for, F:1
remedies and, 3:1, 3:23-25
repeat, 2:5-6
restraining, 3:4
stalking protective order and,
1:9-11, 3:24
violence and, 1:4-7
petitions generally, 2:3-4
answers to, 2:12
dismissal of, 2:11, 2:14
ex parte applicants and, D:1-2
ex parte orders and, 2:4
denial of ex parte relief 2:6
filing of, 2:6
hearing schedule for, 2:11
pet abuse, B:4
physical abuse/violence, A:7, B:3
physical force, A:2-4, E:3, E:12, E:13
physical safety, 3:3, E:3, E:5, E:13
police officers, 3:37
police reports, D:1
Post Traumatic Stress Disorder, 1:9
pre-hearings, 2:11-14
See also hearings
presumption of constitutionality, 1:14
prevention, B:2, B:6-7
privilege generally, Q:2
criteria for extension, Q:8
federal caselaw, Q:8
federal rule, Q:7-8
psychotherapist-patient, Q:6-7
privileges, 5:31-34
probable cause, 2:5
probation, 4:18
probation officers, 3:38
property generally, 3:9-15
crimes, 4:12
criminal damage to, 4:8
damage of, 1:5
eviction of, 3:12-13
ex parte applicants and, D:1-2
personal, 3:13-14
third parties rights to, 3:12
property crimes, 4:8
prosecuting attorneys, 3:37
protection, 3:1-4, 3:22, M:2
children and, O:2-5
protection order information sheet, F:1
Protective Order Registry, M:2-3
protective orders generally, 3:35-37

Index:6

Brady Gun Act, 3:22
contempt and, 3:39-42
criminal violation of, 3:43
employer, 1:12-13
enforcement of, G:4
family violence, 1:2-8, J:2
firearms and, 3:2-4
foreign, 3:37
Georgia and federal statute on,
3:37-38
monitoring and enforcing,
G:4-5
number of Georgia, M:2
prevention of abuse and, 1:1,
B:2, B:6-7
procedures and provisions of,
2:3
stalking and, 1:9-12, 1:14-15
temporary, B:6-7, G:4-5
transmittal and entry of, 3:36
protective order cases, 2:15
consent agreements and, 3:2729
protective order statute, 2:2-3, 2:11
protective services, J:2-5
protocol, 3:31
psychiatric services, 3:15-16
psychological abuse, 1:7
See also abuse types
psychological evaluation and treatment, 4:18
psychological services, 3:15-16
Ptacek, James, D:2
public order, 4:9
Q
Qualified Domestic Relations Order, N:6
R
RAKSHA, Inc., H:21
Rao, Rathi, H:23
rape, 4:7
reckless conduct, 4:4
Refugee Family Services, H:21
refugees, 2:16, H:12, H:20
relationships generally, 1:2-3
abusive, B:2,
definition of intimate partner,
B:2
offender/victim, 4:1-2
relationships generally (continued)
women in abusive, B:2-6
remedies, 3:23-30
consent and, 3:28-29
equitable powers and, 3:25-27
judicial discretion and, 3:23-27
Rennison, Callie Marie, 3:3
res gestae, 5:9
Resources
local, Resources:1-2
State and National,
Resources:3-9
respondents
admissions by, 3:28-29
counseling and, 3:15-17
employer protective order and,
1:13
family violence order and,
1:2-3, 1:7
firearms and, E:4
Georgia Protective Order
Registry and, M:1-4
guns and, 3:2-3
hearing and, 2:16
orders outside of Georgia and,
3:37-38
restraining orders and, 3:3
stalking protective order and,
1:9-11

Restitution, R:2-6
restraining orders generally, 1:9, 2:12
divorce and, 1:15
Georgia Law and, 3:2
firearms and, 3:3
no-contact orders and, 3:1-2
stalking and permanent, 4:18
stay-away orders and, 3:1, 4:18
violation of, 3:43
See also protective orders
Right to privacy, Q:4, Q:9
Rothman, Emily, E:8, E:14
Rule Nisi, 2:6
S
safety, A:11-12, E:8, F:1
See also lethality generally
Safety Focused Parenting Plan, N:6-17
Saltzman, Linda E., 3:3, 4:23
screening, C:1, K:10
search warrant, 4:21
second offenses, 4:16
self defense, 4:21, 5:25-26
sentences, 4:14-17
settlements, 3:27-30
sexual abuse, A:7
sexual crimes, 4:6-8
shelter
advocates, Q:6-9
certification, Q:6
confidentiality, Q:2-9
Sharps, P., B:6
sheriffs, 3:37
show cause. See noncompliance
showings, 5:21-24
siblings, 4:15
Silverman, J.G., 1:3
Simmons, C., B:4
simple assault generally, 1:4
case offenses as, 4:8-9
sentencing and, 4:14
simple battery generally, 1:4
case offenses as, 4:9
sentencing and, 4:15
situational couple violence, A:5, A:11
Sixth Amendment, 4:17
slap, 4:1
Southworth, Cynthia, P:6
Special Immigrant Juvenile Status, H:11-12
spouse, K:8, K:12
spousal support, 3:14-15
stalking generally, 1:4-5, 1:9-11, 4:11
bail and, 4:24
cases and, B:4
case offenses as, 4:11
counseling and, 3:15-16
cyberstalking, P:2-6
firearms and, E:5
harassing and, 1:10, 4:4-5
imprisonment and, G:5
restraining orders and, 3:43
stalking orders, 3:21-23, E:5-6
stalking protective order registry, 4:13
stalking protective orders generally, 3:31-33
denial of ex parte relief 2:6
jurisdiction for, 2:1
pre-hearing, 2:11
protection and, 2:14
remedies for, 3:1
restraining order and, 1:9
statute, 2:3
Standards, 1:14, 3:15, 3:26
Stark, Evan, 1:7
State Board of Pardons and
Paroles, 3:18, 3:37
State of Georgia as employer, 1:13
statute of limitation, 5:24
statutes
civil protective order, 1:2-14

Index:7

statutes (continued)
family violence, 2:5-6
protective order, 2:3, 2:5
stay-away orders, 3:1
Stets, J., A:3
STOP grant, 4:19, E:7, E:12
Strack, Gael, 4:11
strangulation, 4:10, B:3, T:2-5
signs of, T:2-3
lethality and, T:4
Straus, M.A., 1:3, A:3, A:4
structured contact orders, 3:2
children and, N:3-4
subject matter jurisdiction, 2:1
suicide, 1:7, B:5
survivor support, J:2
T
TAPESTRI, H:20
Tapestri, Inc., 2:16
task forces, A:13
Taylor, L.R., A:7
Temple, J.R., A:8
temporary protective orders, B:6, G:4, J:2
divorce and, 1:15-16, N:3
firearms and, E:3-8
See also protective orders
and restraining orders
terroristic threats, 4:9
testimonials, 5:10
testimonies, 5:10-14
therapy, 3:17
third parties, D:2
threats generally, 1:7, 1:11, 1:13, A:9
guns and, B:4
protection orders as, 3:22
Tjaden, Patricia, K:5
Trafficking Victims Protection
Reauthorization Act of 2008, H:11
twelve-month orders, E:7
U
unemployment, B:5
unlawful violence, 1:13
Uniform Forms, L:1
Family Violence Ex Parte
Protective Order
Family Violence Six Month
Protective Order
Family Violence Twelve Month
Protective Order
Family Violence Three Year /
Permanent Protective Order
Stalking Ex Parte Temporary
Protective Order
Stalking Six Month Protective
Order
Stalking Twelve Month
Protective Order
Stalking Three Year /
Permanent Protective Order
Stalking Permanent Protective
Order
Persuant to Criminal
Conviction
Dismissal of Temporary
Protective Order
Order for Continuance of
Hearing and Ex
Parte Protective Order
Order to Modify Prior
Protective Order
Uniform Superior Court, 2:3
Uniform Superior Court Rules
forms and, 3:38, L:1
Rule 5.1, 2:13
Rule 6.2, 2:13
Rule 6.3, 2:13

Rule 6.7, 2:13
Rule 24.1, 2:3
Rule 24.2, 2:3-4, 3:8-9
Rule 24.5, 2:15
Rule 24.9, J:3-7
Rule 31.1, 5:20, 5:29
Rule 31.3(B), 5:21
Rule 31.6(A), 5:29-31
Rule 31.6(B), 5:29
U.S. Citizenship and Immigration Services
(USCIS), H:6, H:11, H:12-13
U.S. Congress, 3:5
United States Constitution, 1:14
U.S. Department of Justice, 1:3, 4:19, E:13,
H:18, P:2, Q:2, Q:4,
U.S. Department of Labor, 1:12
U.S. State Department, H:15, H:18
U Visa, H:10, H:18
V
VAWA, 3:24, 4:19, H:9
Confidentiality, H:18-20
venue, 2:1
Victims’ Compensation, R:5
victims generally, A:11
children as, O:5
female homicide, B:2-6
immigrants and refugees
as, H:13-14
intimate partners as, B:2-5
legal custodians as, J:3
mediation and, K:8-19
pressing charges and, 4:20
threats to arrest and, 4:20
VINE System, U:3
violations, 4:12
violence generally, A:2-3
causes of, A:4
children and, J:2-8
credible threat of, 1:13
cycle of, 5:39
escalation and, A:6, B:4
future lethal, B:2-6
history of, B:2
mediation and, K:2-16
perpetrators and, A:3
types of, A:5-9
See also family violence
Violence Against Women Act, 3:24, 4:19,
H:9, H:18
Violence Against Women Act’s Full Faith
and Credit Provision, G:5
visas, H:5, H: 9
visitation
arrangements and, N:3-5
guardian ad litem and, J:3
supervised, N:4
visitation order, 3:5-8
voluntary manslaughter, 4:3, 5:26
W
waiver, 3:29-30
wall beat, 4:11
warrants, D:1
weapons
civil cases and, E:3-8
exemption for, E:6
ex parte applicants and, 3:3-4,
D:1
firearms as, 3:2-4
See also firearms
Weber, C.V., B:5
White, J., A:7
Wigmore, John, Q:3, Q:9
Wilbur, Lee, 4:10
Wilson, C., 1:3
Wilson, Margo, 2:4, 2:12
witnesses generally, 2:15
criminal cases and, M:2-4

Index:8

expert, 5:37-43
guardian ad litem as, J:6
WomensLaw.org, A:12
Work Authorization Eligibility, H:5
work permit, H:7
workplace, 1:12-14
Z
Zahn, Margaret A., B:2
Zorza, Joan, 2:13, 3:4

Index:9